Oral Answers to Questions

CULTURE, MEDIA AND SPORT

The Secretary of State was asked—

Senior Sporting Appointments

Tony Lloyd: If she will issue guidelines to sports governing bodies on the criteria to be used in assessing the fitness of individuals for senior positions.

Richard Caborn: Sport England does not issue guidelines to national governing bodies of sport for use in assessing the fitness of individuals for senior positions. This should be part of a governing body's own recruitment policies and procedures. However, Sport England has carried out fit-for-purpose reviews that have established a basis on which to provide a degree of assurance that governing bodies are indeed fit to receive public funds, and that includes human resources.

Tony Lloyd: I thank my right hon. Friend. Obviously, control of major sporting bodies, whether in the professional or amateur game, has enormous importance to the sporting public and the general community. Control of a company such as Manchester United, in which I have a small shareholding, would have an enormous impact. There are rumours of a takeover by Malcolm Glazer, who was described in the United States courts as a snake in sheep's clothing when he tried to take over Harley Davidson and who is being investigated by the Securities and Exchange Commission, so is hardly a fit and proper person to take on the governance of a football club. Can my right hon. Friend put a comment on the record that might dissuade Mr. Glazer from his predatory activities?

Richard Caborn: I cannot comment on the description of Mr. Glazer, but I can assure my hon. Friend that the premier league and the Football League have taken significant strides recently to ensure that there is good governance and that they have fit and proper people on the board. He can be assured in that sense. Company law is now more stringent on the appointment of company directors, particularly concerning the Football Association premier league. I was pleased to read the statement by the chief executive of Manchester United, David Gill, when he said that any decision would take into account both present and future shareholders. That is important for a football club like Manchester United, which plays a tremendous role not just in the game, but in its community. That should be considered by any board that takes the decision.

Ian Lucas: The former chairman of Wrexham football club, Mr. Alex Hamilton, described leading the club towards administration as
	"the most fun I have had with my clothes on."
	That was before the 10-point deduction that the club received from the Football League. He was deemed by the Football League to be a fit and proper person to run the club, but the population of Wrexham beg to differ. Will my right hon. Friend have further discussions with the Football League to impress on it that the current fitness-for-purpose test is not sufficient to protect football clubs, which are important community institutions? Football supporters need more support.

Richard Caborn: I reiterate what I said earlier. Both the Football League and the premier league have taken steps recently to bring about better governance and regulation of the game. They have not got everything right and I think that they would accept that. However, the fact that Wrexham had 10 points deducted for going into administration is a step in the right direction and is a deterrent to trying to manipulate the situation, which would have been unfair to the other clubs in that division. I hope that we are getting better governance and regulation in all our sports, including football.

BBC

Andrew Selous: What account she will take of standards of public decency in programmes screened by the BBC as part of her decision on whether to renew the BBC charter.

Estelle Morris: All aspects of the BBC's organisation, operation, funding and governance are being considered as part of the on-going BBC charter review. The mechanisms for securing appropriate programme standards fall within the scope of the review.

Andrew Selous: While I condemn the publishing of BBC executives' private addresses, does the Minister realise that many people do not consider it appropriate for public service broadcasting to use taxpayers' money to fund programmes such as "Jerry Springer—The Opera", which offend so many people? Does she realise that many licence payers do not believe that the BBC provides value for money in screening programmes that upset so many of our constituents?

Estelle Morris: Of course I accept that people throughout the country may have been offended, but people are offended when we have free speech. I would rather have free speech than try to legislate against people being offended.
	What is broadcast or printed is not and never should be a matter for the Government. In our nation, which cherishes free speech—it is so important—there is a legislative framework to which people can appeal, as they have done in this case. Both Ofcom and the BBC governors have that responsibility and no doubt will respond to concerns expressed by the public in due course.

Alan Howarth: Is not it better that we choose our own infantilisms like real grown-ups, rather than be infantilised by the censor or even by my right hon. Friend herself?

Estelle Morris: My right hon. Friend is right. Heaven forbid that anyone should dictate what we can see, what we should listen to, or anything else. I would sooner run the risk of being offended than of having artistic performances denied to me.

Tim Boswell: Does the Minister agree that although the independence of the BBC is important, and although I have not the slightest problem about the BBC giving offence over some tacky American programme, the screening of any programme that gives gratuitous offence to the Christian community or any of the great faiths prevalent in our land is a rather different matter? Does she, therefore, agree that a degree of self-restraint would be appropriate from the broadcasting authorities in that case?

Estelle Morris: What is broadcast is still a matter for the BBC, and that is absolutely fundamental, but because of the importance of free speech and artistic freedom, a legislative framework covers not only broadcasting but theatre and print as well, and it is against that framework that decisions should be made. As far as I am concerned, the BBC will look at the framework and it will make a decision about whether it should broadcast. That is a fundamental principle that in no circumstances should be crossed.

Clive Soley: This is a good time to remind ourselves that censorship is a dangerous thing for religions generally, especially minority religious views. Whether it be plays, books or operas on television, religionists would be ill advised to go down the road of censorship, not least because although I have not seen the "Jerry Springer" programme, having watched the play about it on the BBC the other week, my inclination would be to demonstrate against the makers of the "Jerry Springer" programme rather than against the BBC, which gave a strong moral message behind that play.

Estelle Morris: My hon. Friend is right. It is interesting that different perspectives can be brought to the issue. Most people of religious belief are well able to stick to their belief and defend it against those who criticise it or disagree. That is an article of faith, and many people who hold religious beliefs are happy to do so in the face of criticism.

Malcolm Moss: Following on from the Minister's response to my hon. Friend the Member for South-West Bedfordshire (Andrew Selous), is she aware that the BBC board of governors continues to argue that it has no role in pre-viewing material before broadcast and thus refused to intervene before the transmission of "Jerry Springer—The Opera", despite 50,000 complaints from the public? Given that the job of adjudicating complaints after broadcast has passed to Ofcom, the question arises as to what the point of the BBC governors is. Will the right hon. Lady make that a priority in the review of the BBC's charter?

Estelle Morris: I am amazed that the hon. Gentleman wants to give the BBC governors the power of censorship before something is broadcast. That is exactly what would happen if he had his way. What is clear is that there is not pre-viewing to censor what is broadcast, but that afterwards representations can be made. I am sure that the hon. Gentleman has looked at the range of measures that Ofcom can use if it finds that the boundaries have been crossed. To give BBC governors the power to watch what is broadcast, ahead of Ofcom and ahead of the public, and for the governors alone to decide whether the public are able to see it, would be censorship that is almost worse than the censorship we got rid of between 20 and 30 years ago.

Digital Broadcasting

Derek Wyatt: When she expects to announce the completion date for digital switch-over.

Tessa Jowell: The Government will confirm the timetable once all the remaining issues relating to digital switch-over are resolved and we are satisfied that the interests of consumers, especially the most vulnerable, are well protected. The timetable will be set on the basis that it can be met by the broadcasters. The House will note—I have placed written statements to that effect—that the BBC and Ofcom estimate that the completion of switchover can be achieved by 2012.

Derek Wyatt: I thank my right hon. Friend for that reply. I understand that Wales will be the first area to switch off—

Chris Bryant: Switch over.

Derek Wyatt: Sorry—switch over, not switch off.
	Has my right hon. Friend considered that as the south-east is the business engine room for the whole United Kingdom it would be much more sensible for switch-over to be simultaneous for Wales and the south-east so that we could, as it were, make more wealth for the whole United Kingdom?

Tessa Jowell: We have made it clear that switch-off—[Laughter]—just checking whether Members are listening. We have made it clear that switch-over will take place on a region-by-region basis, and no decision has yet been taken about which region will be first. My hon. Friend may be confusing the switch-over with the pilot exercise that is taking place, from which a lot is certainly being learned: it has been successful in demonstrating to sceptics the value of going digital.

Patrick McLoughlin: A number of my constituents are unable to receive any digital television at all. They very much resent having to pay the full TV licence. Why do they have to do that?

Tessa Jowell: That is precisely the reason why it is important to set a timetable for digital switch-over. Almost 60 per cent. of households have a digital television, and we are very close to a point where the hon. Gentleman's constituents will be shut out from the opportunity to upgrade their televisions. That is why we are moving switch-over forward at our current pace, and why it is such a very important consideration in the review of the BBC's charter, to which reference has also been made.

David Cairns: For as long as the days of analogue television are numbered, no new investment is going into upgrading the analogue network and analogue receivers, so people in Inverkip and Wemyss Bay in my constituency who cannot get analogue television, let alone digital television, have no prospect of getting a signal in the near future. Does that not indicate that we need to get a move on with digital switch-over, so that more effort is put into ensuring that those areas that cannot get an analogue signal can get a digital signal when the digital switch-over comes?

Tessa Jowell: All those are very good reasons why we need to get a move on with digital switch-over, and we are doing so.

Don Foster: In her answers in relation to digital television switch-over, the Secretary of State has just stressed the importance of a timetable, but is that not equally true of the switch-over to digital radio? Does she recall that, back in the summer, she said that she was considering a date for digital radio switch-over? Can she therefore explain to the House why her noble Friend the Minister for Media and Heritage said at the end of last year:
	"We are not considering any timetable for that at all"?
	Are the Government considering that, or are they not?

Tessa Jowell: At the moment, we have not yet got the figures for the number of digital radios that were given as Christmas presents, but far less than 10 per cent. of radios are digital, so digital radio is too new a technology—it is too new a domestic accessory—for us to be sufficiently confident about the rate of change to say that we will switch off the analogue radio signal. I am sure that, in future years, precisely the same consideration will be given to the future of analogue radio as in our broad decisions to switch off the analogue television signal, but the important thing is to keep pace with public demand and public enthusiasm for the change.

Tony Clarke: The role that free-to-air broadcasting plays in ensuring that the digital revolution can be shared by those on low incomes should not be underestimated, but can my right hon. Friend say why people in the middle of Northampton in NN1 and NN2 postcodes are still not able to receive free-to-air digital broadcasts? If we are to get people in those areas—many of them are on low incomes—to switch on, we need to ensure that the town in the centre of the country is not isolated and kept off the network; it needs to be on as soon a possible.

Tessa Jowell: The practical reason why my hon. Friend's constituents are unable to get free-to-air digital television is that we cannot increase the coverage of free-to-air services—freeview—until the analogue signal is switched off and the power of the transmitters is increased. All those considerations are part of the plan for digital switch-over to which I have referred.

Anne McIntosh: What role the proposed public service publisher will have in delivering regional news programmes in relation to digital broadcasting.

Tessa Jowell: The establishment of a public service publisher was a proposal made by Ofcom in phase 2 of its public service television review. Ofcom has conducted a public consultation on all its proposals, and will publish its final conclusions in due course. Obviously, we in government will consider its recommendations very carefully.

Anne McIntosh: Although I thank the Secretary of State for that reply, it does not answer the question. I asked what role the public service publisher would play. Yorkshire Television, Tyne Tees Television and the other regional broadcast stations play an excellent role in fulfilling their public service obligations, and I cannot believe that this new body will add anything. Will she say what role it will play and who will pay for it?

Tessa Jowell: No, it is not yet possible to do that, because final decisions about the nature of the proposal have not yet been made. Ofcom has just completed the consultation on its phase 2 report in which this proposal for a public service publisher was made. My view is that the proposal merits further consideration, and I am sure that if the hon. Lady wishes to make representations to Ofcom on the basis of her regional experience, it will happily receive them.

David Taylor: If the Secretary of State means what she says when she refers to the priorities and importance of regional broadcasting—I am sure that she does—how does she think that those areas of the country that are near regional boundaries and that are unable to receive news broadcasting from the correct region will be in a stronger position when digital broadcasting is widespread and the relevant signals can be incorporated? For example, parts of the east midlands receive broadcasting only from the west midlands at the moment.

Tessa Jowell: There are two separate issues. The first is the technology and its capacity to extend the reach of free-to-view television. The second is the current debate about the nature of regional content. One of the conclusions of the Ofcom review is public enthusiasm for even more very local regional content, particularly in news. Broadcasting and free-to-air broadcasting are a fundamental part of our democracy, and I hope that hon. Members will join in the debate about developing regional television that meets the needs and ambitions of their constituents.

Julie Kirkbride: If the Secretary of State, who is in charge of broadcasting in the UK, cannot think of a role for the public service publisher, what is the point of having it? Surely it is just another excuse for Labour to spend other people's money.

Tessa Jowell: With respect to the hon. Lady, that is not the most original intervention. Ofcom has already set out the nature of the proposal, and it is consulting on it. It is then for it to come forward with a final proposal and in a due course—it is certainly not a proposal for the next three or four years—the Secretary of State will take a view on it.

2012 Olympic Bid

Jim Knight: What discussions her Department has had on cultural activities linked to the 2012 Olympic bid.

Estelle Morris: In February 2004, my Department appointed Jude Kelly, one of the most respected people in contemporary British theatre, as chair of the culture and education committee for London's Olympic bid. Since then, in consultation with the arts community, she has developed an ambitious and exciting cultural programme for the 2012 Olympiad.

Jim Knight: I thank the Minister for her reply. The 1948 London games was the last time when medals were awarded for disciplines such as art and poetry, as an expression of the importance of the arts within the Olympic ideal. I am not suggesting that we return to that, but may I encourage her to maximise the opportunity of the cultural Olympiad to engage with the public beyond those interested in sport, and particularly in developing cultural exchanges as part of the Olympics with host venues such as Portland?

Estelle Morris: I am most grateful for my hon. Friend's comments. He is absolutely right. The Olympic ideal is about mind, body and spirit, and art and culture has a lot to contribute to that. When the candidate file is looked at and when the bid is closely examined, we will have every right to be very proud of the cultural part of the bid that the United Kingdom is putting forward. If we consider Sydney, we see that what is left of its cultural bid has served that community very well. I am grateful to my hon. Friend for his comments and for the support that he has given to the cultural bid in his constituency.

Simon Hughes: Can the Minister assure us that in the run-up to the selection date in July, let alone beyond, we are selling the point that London is the most cosmopolitan city in Europe and that every cultural community—the four British culture communities and all the others—is engaged as part of the support for the bid? It will be of huge benefit to us as a country and of huge benefit to each of those many, many, many tens of communities that are in this city already.

Estelle Morris: The hon. Gentleman is right. Indeed, my right hon. Friend the Secretary of State made that point at the conference that was held this morning. The strength of the bid is London at its centre, but it is important not to forget the impact that it will have on the rest of the nation. The diversity and richness of London's cultural activities only enhance the strength of the bid.

Hugo Swire: Is the Minister aware of mounting concern about the cultural implications of the Government's plans to fund the Olympic bid? Even the Chairman of the Culture, Media and Sport Committee says that they are funding it by
	"raiding the lottery and its good causes for something the Treasury might be expected to finance".
	Does the Minister agree on reflection that my party's policy of putting £340 million of Treasury funds into the Olympics by forgoing lottery duty, which would avoid existing good causes such as arts and heritage losing up to £64 million a year, would be a fairer and more transparent way of funding the Olympic bid and the associated cultural events? When, therefore, will the Government commit themselves to funding the Olympics properly and guarantee the cultural sector that it will not suffer as a result of the games?

Estelle Morris: We have been grateful for the support of Opposition parties throughout the Olympic bid so far, but I understand that the hon. Gentleman is volunteering the Exchequer to fund it. It is absolutely right to get resources for the bid from several different sources, and I have no problem with the special lottery game for the Olympics that will be launched shortly. He is absolutely right that some parts of the arts sector might lose money in the long term, but that is only a guess. It may well be that more people will buy lottery tickets, which would mean that there would be sufficient money to support not only the Olympic bid, but the arts.

Sports Governing Bodies

Andy Reed: What steps she is taking to assist modernisation of national governing bodies of sport.

Richard Caborn: UK Sport has administered a modernisation programme since April 2001, which was designed to help national governing bodies of sport to become more efficient and effective in all aspects of their work. To date, Exchequer funding of £10 million has been made available to support a number of projects of differing size and complexity across a wide range of governing bodies. From April this year, the national governing bodies of UK-wide priority sports will be invited to embed their modernisation action plans in one-stop plans and will no longer be required to submit separate applications for modernisation funds.

Andy Reed: I am grateful to the Minister for that reply. It is important for national governing bodies to modernise the way in which they deliver services and look after their athletes. Is he aware of the Loughborough sports project, which would enable many national governing bodies to come together to share services, especially back-room services? Will he comment, and perhaps write to me, to tell me how the bid from Loughborough is going and when we can anticipate receiving money from modernisation funds to match that which we have already secured in the region, especially from the East Midlands Development Agency?

Richard Caborn: I congratulate my hon. Friend on his role in Loughborough and wider sports, because he is keen to ensure that the modernisation programme is carried forward. It is pleasing that several governing bodies are co-operating and coming together to consider how they can develop sport in a more holistic way. I hope that that will increase participation in sport, which we would all welcome. Of course the big four governing bodies are working together, but for the small and medium-sized governing bodies, I think that the suggestion from Loughborough is imaginative—he knows that I support it. Financing is a matter of priorities. I hope that the project can go ahead, but as I think he knows, the decision is one for Sport England.

BBC

John Robertson: What progress she has made towards securing a new royal charter for the BBC.

Tessa Jowell: The charter review process was launched in December 2003 and is continuing. It has been open and transparent throughout and has benefited for the first time ever from wide consultation with the public. There has also been consultation with the industry and in-depth research and advice from Lord Burns and his independent panel. I hope to be in a position to publish a Green Paper in the next two months.

John Robertson: I thank my right hon. Friend for her answer. She knows that the BBC's fair trading commitments are regulated internally. However, it has been suggested that that leads to a conflict of interest on occasions, especially regarding the value of the licence fee and getting a fair deal for the contributor or the supplier. There is also unnecessary bureaucratic expense. Does my right hon. Friend believe that external regulation of the BBC's fair trading commitments could solve that problem and, if so, will she consider it as part of the charter renewal?

Tessa Jowell: The answer to the last part of my hon. Friend's question is yes, for all the good reasons that he set out.

Peter Luff: How does the Secretary of State think the BBC's claim for a new royal charter is enhanced by a programme such as CBBC's "Dick & Dom in Da Bungalow"? Perhaps, if she is not familiar with the programme, I can invite her back to my office to see the website, where she can join me in playing "How low can you bungalow?", a test to find one's response to grossly embarrassing personal situations, largely of a lavatorial nature. The right hon. Lady can also view "Pants Dancers in the Hall of Fame", which is photos of children with underwear on their heads, and play "Make Dick Sick", a game that speaks for itself. Finally, there is "Bunged Up", in which one plays a character in a sewage system, avoiding turtle poo coming from various lavatories. Is that really the stuff of public service broadcasting?

Tessa Jowell: It is the Government's job to develop a new charter for the BBC; it is then the BBC's job to determine standards of taste, decency and appropriateness.

John Grogan: Does my right hon. Friend agree that there are many advantages in a 10-year BBC charter, rather than the five years being mooted in some circles, to span digital switch-over and allow the BBC to plan for public service broadcasting in the post-digital world, not least because it takes three or four years of production to get some programmes, such as the excellent Auschwitz documentary on BBC 2, from the ideas stage to broadcast?

Tessa Jowell: I certainly accept that there is weight in my hon. Friend's case.

Amateur Sports Clubs

Clive Betts: what support her Department offers to amateur sports clubs.

Richard Caborn: The community amateur sports club scheme provides such clubs with a relief of 80 per cent. on their non-domestic rates—mandatory rate relief—and gift aid on donations from individuals, as part of a package of benefits intended to promote community and grass-roots sport. I welcome the fact that more than 2,000 clubs have so far registered with the scheme and received an estimated total of £5 million in tax relief as a result.
	I want to put on record my thanks to my hon. Friend, who moved the amendment to the Local Government Bill which brought about that fundamental change.

Clive Betts: I thank my right hon. Friend for his answer. I welcome the fact that 2,000 clubs have signed up to the scheme and are receiving the benefits. However, I am sure that my right hon. Friend would accept that there are probably many thousands of clubs who are eligible for the scheme but are not getting the money because they have not applied, perhaps because they do not know that the scheme exists. Will he consider increasing and improving the publicity for the scheme, perhaps by launching a campaign involving hon. Members on both sides of the house so that they can contact the clubs in their constituencies to make sure that they know about it and apply for it?

Richard Caborn: That is absolutely right. I happen to have to hand one of the 10,000 leaflets, "Growing community sport", which we distributed to the national governing bodies only a few weeks ago.

Malcolm Moss: What a surprise.

Richard Caborn: As my hon. Friend the Member for Sheffield, Attercliffe (Mr. Betts) pointed out, there may be 40,000 or more sports clubs in this country, and 2,000 of them are now receiving, year in and year out, £5 million of investment in grass-roots sport. Disappointingly, although the press hammered us daily, screaming for mandatory rate relief and support for sports clubs, when we wrote to every national newspaper three or four weeks ago asking it to broadcast the good news about the relief, not one word about it was printed. The Treasury has been very supportive of the move. I call on the national press and everybody in the House to make sure that every sports club in this country knows that there is money for the taking, week in, week out, year in, year out.

Alistair Burt: Bearing in mind the difficulty of finding adults to come forward to lead young people's organisations of all sorts, including those involved in sports, will the Minister commend the activities of McDonald's, which has supported grass-roots amateur football to the extent of 140 coaches in Bedfordshire in recent years? Will he do all that he can to encourage more adults to come forward to lead young people's sporting organisations, and do away with all the unnecessary regulation which makes that so much more difficult?

Richard Caborn: The hon. Gentleman makes a good point about trying to encourage more volunteers into sport and into voluntary work per se. Undoubtedly, there are some obstacles to volunteering, including some to which the House has agreed. For example, record checks to guarantee the protection of children are right and must be adhered to. However, other serious problems relate to insurance but, as the hon. Gentleman knows, together with the insurance industry, we are trying to find solutions to that. My right hon. Friend the Chancellor of the Exchequer has instigated a review of volunteering, through Ian Russell. I hope that his report will be out in the next few weeks, and that will give us a platform for debate. Most hon. Members want to encourage more people to volunteer. Of all volunteers, 27 per cent. are in sport, and without them grass-roots sport would not exist.

Dennis Skinner: Is my right hon. Friend aware that in Bolsover they are ready, willing and able to start an amateur swimming club, and they would probably get a grant? We would provide Olympic and Commonwealth swimmers before my right hon. Friend could can bat an eye. The trouble is we have not got the swimming bath yet, so will he meet representatives of Sport England to get the money from the lottery, to get the bath, and then the show will be on the road?

Richard Caborn: With the guarantee of Olympic swimmers coming out of Bolsover, how can we refuse such a request? As my hon. Friend knows, we are working with the authorities to try to get investment for a 25 yd swimming pool, and we will continue to do so. I hope that the result will be positive.

John Whittingdale: Is the Minister aware that amateur sports clubs up and down the country face enormous extra bills as a result of the new fees proposed under the Licensing Act 2003? Is he further aware that his predecessor, the hon. Member the Member for Pontypridd (Dr. Howells), explicitly said in Committee that the Government intended to accept our proposal that voluntary sports clubs should not have to pay more than a 10th of the amount paid by commercial organisations, and that the Government have now betrayed that commitment?

Richard Caborn: I have just said to the House that amateur sports clubs that want money from the Revenue can qualify for mandatory rate relief; people tell me that they have been asking for that for 30 years. There is also gift aid and other tax breaks available to clubs under the CASC scheme. In fact, those options offer far more money to clubs than the hon. Gentleman's suggestion. He does not know what the licensing fees will be, because they have not been announced yet. I hope that that announcement will be made in the next few days. Any sports club running a bar for profit, which rightly brings money into the club, will find that those fees will be small, and so easily absorbed in the running costs and by the prices of the products sold. The gains for amateur sports clubs under the CASC scheme far outweigh any cost that we will introduce through licensing.

John Whittingdale: The Secretary of State said on Second Reading that she was
	"absolutely determined"
	that the Licensing Bill would be
	"welcomed by sports clubs, large and small". —[Official Report, 24 March 2003; Vol 402; c. 53.]
	The Central Council of Physical Recreation, which represents those clubs, has said that the new fees
	"risk devastating the entire country's sporting landscape".
	It says that it has been inundated by correspondence from clubs that risk losing vital income that helps to keep their organisations alive. Will the Government withdraw the proposed fee levels and honour the commitments that they gave?

Richard Caborn: We consider every word that is said by organisations that represent sports clubs, but only 2,000 clubs have applied for the CASC scheme, out of a possible 40,000. In one year, those 2,000 clubs have received £5 million. At least the CCPR has been one of the more active bodies in promoting the scheme. There is money waiting to be collected by the other 38,000 sports clubs from mandatory rate relief and other tax breaks, especially gift aid, but they have not applied for it. The governing bodies, the CCPR and others should be ensuring that those 38,000 clubs apply. The proposed liquor licensing fees can be absorbed easily into the bar prices or running costs of clubs.

Community Sports Initiatives

John Mann: What recent representations she has received on funding for community sports initiatives.

Richard Caborn: The Department receives a range of representations on funding for community sports initiatives. By 2006, the Government will have committed more than £1 billion to the development of sports facilities through the New Opportunities Fund for PE and sport, the community club development programme, Space for Sport and Arts, Active England and the Football Foundation. I will place a full update on our sports facilities programmes in the House of Commons Library within the next few days.

John Mann: Does the Minister agree that there is no better way than sport to combine social inclusion, healthy living and increased aspirations? If he does, does he also agree that we need even more flagship community sports projects, particularly in coalfield communities?

Richard Caborn: Very much so. I commend my hon. Friend for the initiatives that he has promoted in Bassetlaw and his efforts to develop such projects around coalfield communities. Let me put on record the fact that of the 4,000 initiatives that are getting the investment that I mentioned, 1,000 are now on site, 1,200 have been completed—contrary to what some Conservatives have been saying—and £203 million has been spent on the schemes. A further 2,000 are yet to be completed.

John Bercow: Separate from the funding available from the Government, would the Minister describe as generous, mean or middling the financial support available for young people to play tennis from the principal beneficiary of the profitability of the Wimbledon championships—namely, the All England club?

Richard Caborn: I think that about 50 per cent. of the profits from Wimbledon go into the grass-roots sport. The new strategy presented by the Lawn Tennis Association is most welcome and I am hopeful that, combined with the new grass-roots developments that are taking place, we will see a renaissance in tennis in this country. It was disappointing that we did not get one woman tennis player through the first round at Wimbledon last year, but I believe that the LTA's work in grass-roots development and the investment by the All England club of between £17 million and £20 million a year from the proceeds of the Wimbledon championships will reap rewards.

Peter Pike: On Saturday, I went to see Daneshouse football club at Daneshouse community centre be presented with some kit by Barclays bank. Does my right hon. Friend agree that, in many ways, that type of support for community grass-roots sports by commercial enterprises provides better value than some of their high-profile sponsorship?

Richard Caborn: I agree. Barclays has now invested through the Football Foundation some £30 million over the next two to three years. In addition, the bank is now working with Groundwork—the regeneration organisation—which has several flagship projects that will be up and running within the next 12 to 18 months. Helped by Barclays' investment with the Football Foundation, which receives £60 million a year, and its work with Groundwork, the campaign is reaching into inner-city areas where sport is needed to encourage young people to become more active and to drive our social inclusion agenda.

Darts

Bob Russell: Whether it is her policy to support darts being recognised as a sport.

Richard Caborn: Decisions on whether particular activities and pastimes should be recognised as sports for official and funding purposes are made by unanimous agreement between the sports councils. I understand that the sports councils keep the matter under constant review, but I was pleased to see today that darts has signed up to UK Sport's anti-drugs code, which I welcome.

John Greenway: What about drink?

Richard Caborn: To the best of my knowledge, alcohol is not covered by UK Sport's anti-drugs code. I hope that, in the light of that development, the sports councils will give more serious consideration to bringing darts into the family of sport.

Bob Russell: If the Prime Minister said that he would like darts to become a recognised sport, would the Minister for Sport and Tourism throw a wobbly? Will he make a 180° turn, and throw his full weight behind the campaign to make darts a recognised sport, as millions of players and supporters already believe that it is a sport?

Richard Caborn: How much further can I go than say that I welcome darts signing up to the UK anti-drugs code? I hope that the devolved Administrations in Scotland, Wales and Northern Ireland, their sports councils and their English counterparts will consider bringing darts into the family of sport, whether the Prime Minister did, or did not say that he wanted that to happen.

ELECTORAL COMMISSION

The hon. Member for Gosport, representing the Speaker's Committee on the Electoral Commission, was asked—

Electoral Registration

Robert Syms: How much money the Electoral Commission is spending on encouraging British citizens who are living abroad and are entitled to vote in general elections to register to vote.

Sydney Chapman: What discussions the Electoral Commission has had with businesses on encouraging their workers who are living abroad and eligible to vote in UK elections to register to vote.

Peter Viggers: I understand that the Electoral Commission undertakes a range of activities aimed at encouraging eligible British citizens living abroad to register. It expects to spend approximately £38,500 during late 2004 and early 2005 on those activities, which include specific initiatives such as advertising and leaflet provision. As for contacting businesses with employees overseas, the Department of Trade and Industry has advised the commission that the most appropriate route is via the Foreign and Commonwealth Office. The commission continues to pursue that route, and has also approached the Confederation of British Industry.

Robert Syms: I am a little disappointed that the commission only spends £38,500 on advertising abroad. There are 15 million British citizens abroad, including many hundreds of thousands who live on the various Costas. A greater effort ought to be made so that they can exercise their democratic rights. I understand that a leaflet is being produced, so will my hon. Friend ask the commission to place it in consulates and embassies as soon as possible? If the Prime Minister were to panic and go in May, the cut-off date for registration would be 1 March, so February is an important month for people who want to register and exercise their democratic rights.

Peter Viggers: I can reassure my hon. Friend that the Electoral Commission has indeed produced leaflets, and that they will be available from overseas posts. That is certainly in hand. He is right to emphasise the paucity of the overseas registration. When I last answered questions in the House, I reported that only 14,496 people overseas were registered from a total of about 15 million. However, the Office for National Statistics told me today that only 7,850 people overseas are registered, including 25 from the borough of Poole. There is indeed a very long way to go, and we all have a duty to encourage overseas registration.

Sydney Chapman: I am old enough to remember that the turnout at the 1950 election was 84 per cent., but at the last election it was under 60 per cent. Surely the Electoral Commission's principal objective should be to encourage as many people as possible who are entitled to vote to do so. What proportion of the 15 million people who live and work abroad are entitled to vote?

Peter Viggers: The Electoral Commission does not have a figure for proportion of the 15 million overseas who are entitled to vote. The qualification, of course, is that they should have been on the register within the last 15 years, but the commission does not have an easy way of ascertaining how many people would qualify. I am sure that my hon. Friend is conscious of the fact that only 57 people from the borough of Barnet, in which his constituency is located, have registered overseas, again proving that there is a long way to go.

Chris Bryant: Would not it make much more sense to allow the 500,000 British citizens who live in Spain and pay taxes there to register to vote in Spanish elections? Similarly, we should allow Spaniards, Italians, French and German people—all members of the European Union—who live in this country and pay taxes here to vote in the UK. Should it not be a question of no representation without taxation?

Peter Viggers: That is a different point, which I think that I should not pursue today.

Andrew Love: Perhaps the hon. Gentleman will not be concerned that I am much more worried about the many more people who are missing from the register in the United Kingdom rather than those who are abroad. Large numbers of people are missing from the register in my constituency, partly because of the inadequate annual canvass that is carried out by my local authority—

Mr. Speaker: Order. We are on questions now. Perhaps the hon. Gentleman will be able to catch my eye later.

Graham Allen: What plans the commission has to recommend that electors be permitted to register closer to the date of a general election.

Peter Viggers: The commission recommended in 2003 that electors should be permitted to register much closer to the date of an election than is currently allowed by law. The Government announced last month that they intend to act on the commission's recommendations.

Graham Allen: I welcome that reply. Like the experience of many Members, the turnout of my electorate at the last election was the lowest ever at under 50 per cent. Will the hon. Gentleman commend the campaign by the Electoral Commission to encourage people to vote following last year's campaign? Will he consider the possibility of extending that to ensure that more people register for the forthcoming election? Will he also ensure that every possible encouragement is given to individuals to register, if possible, as late as the same day as an election, as they do in many states in the United States? That means that people can register at one door of the town hall and vote in the election at the next door.

Peter Viggers: The commission takes the view that it would not be practical or of great benefit to allow registration up to the date of the election, but it recommends that that date should be carried back to the date of nominations.
	As for the hon. Gentleman's point about publicity, I understand that the commission is about to embark shortly—in early February—on a multi-media campaign aimed at encouraging people to register to vote. There has been some speculation already this afternoon that if there were to be an election in May, something about which I have no special knowledge, the cut-off date would be 11 March. It is important that people should register without delay.
	The commission's similar campaign during the last   election achieved excellent results with about one in three correspondents who had seen the advertising saying that they had voted on 10 June as a result of the campaign. The commission is encouraged by that.

Andrew Robathan: Regarding a later date for registration for elections, does my hon. Friend share my real concern about the collapse in the number of service personnel registered to vote? Does he agree that there needs to be a determined campaign by the Ministry of Defence to encourage them to register so that the brave men and women who are serving overseas, often in dangerous circumstances, are able to register before we have an election, which is likely to be in May?

Peter Viggers: My hon. Friend may have noticed a reply to my hon. Friend the Member for Salisbury (Mr. Key) on 10 January, in which the Government announced that there would be a Defence Council initiative, which would be taken shortly, to encourage service personnel to vote. My hon. Friend is on to an extremely good point. As I have said before in the House, I am perhaps more likely to be concerned about this issue than most as the number of service voters registered in the borough of Gosport has fallen from 4,370 in 2000 to 474 in 2004. I think we all should be concerned about that.

Patrick Cormack: Have Ministers given the Electoral Commission any  indication when they will implement that recommendation? Have the Government pledged to do so before the next general election or have they just said that it will happen at some time?

Peter Viggers: The Government have said that the recommendation will be implemented as soon as possible but that it would require primary legislation. I think that it is most unlikely that it will be before the election, whatever the date of that.

PUBLIC ACCOUNTS COMMISSION

The Chairman of the Public Accounts Commission was asked—

IT Projects

Archy Kirkwood: What assessment has been made of the resources available to the National Audit Office to undertake appropriate inquiries into the future procurement of major departmental IT projects.

Alan Williams: The National Audit Office already examines IT programmes and projects as part of the annual programme of value-for-money studies. The cost implications of the NAO's work are reflected in the resource bids submitted by the Comptroller and Auditor General for consideration by the Public Accounts Commission. The commission will be examining the NAO's bid for 2005–06 at its meeting on 27 February.

Archy Kirkwood: I am grateful to the right hon. Gentleman for that answer and commend the work that he and his fellow commisioners do through the National Audit Office and the Public Accounts Committee, keeping the House informed of historic analyses of public expenditure, which is vital. He has a great deal of experience in this field. Has he any suggestions as to how the House could be better informed about future spend, particularly on ICT projects, which have huge cost implications, as they roll out? The value of the NAO reports and the Public Accounts Committee's valuable work is too historic for the House to be sure that it is keeping in touch with what is happening in some of the big projects currently being rolled out.

Alan Williams: As the hon. Gentleman well understands, the investigatory role that the NAO carries out on behalf of the House must inevitably be retrospective. In order to retain the independence of that scrutiny, it is important that the NAO does not get involved at too early a stage. Let me report on what I think is a hopeful development, though not yet an achieved result. In November, the Office of Government Commerce appeared before the Public Accounts Committee and outlined to us a programme of gateway reviews—key stage reviews—of IT projects across virtually all Departments. When a project is in trouble, the gateway is graded red and the project does not progress until it has been examined. I suggested at that meeting that the National Audit Office should be notified as soon as a project is classified red, and that the NAO should be able to recommend it to us. A couple of weeks later we had the Ministry of Defence before us, which does not operate quite the same system as the OGC, but has a system of its own. I put the same question to the MOD, which has agreed to speak to the NAO, and I am hopeful that we will be able to develop some sort of early warning system in our next report.

Edward Leigh: Does the right hon. Gentleman agree that the question is useful and pertinent, because it underlines the central importance of IT to the political debate? For instance, in the debate on identity cards there was very little mention of the fact that there are huge discussions about whether the costs will range from £1.1 billion to £3 billion, which is the Government's estimate, or £5 billion, which is the estimate of others, solely because of IT. To give reassurance to the hon. Member for Roxburgh and Berwickshire (Sir Archy Kirkwood), on Wednesday this week the NAO is publishing a report on patient choice—again, central to the policy debate. The cost of that and its effectiveness will depend crucially on IT. The question underlines the importance of the subject.

Alan Williams: May I agree with the hon. Gentleman in his agreeing with me?

David Heath: I agree, too. The learned society, the British Computer Society, offered to give advice to the Government some years ago—an offer that was refused. Is it possible to take up the offer on behalf of the commission and the National Audit Office, to provide expert advice on the construction of IT projects? Could the Home Office be under continual review in that respect, as it is the author of the most spectacular failures of IT and has still not implemented a requirement of section 39 of the Firearms (Amendment) Act 1997 to set up a central register of holders of shotgun and firearms certificates? That was introduced seven years ago and not a single operation or programme has been constructed.

Alan Williams: It is for the NAO to decide which reviews it undertakes. It is independent in the pure sense of the word and it is essential that it remains so. However, I shall draw to the attention of the Comptroller and Auditor General the points that the hon. Gentleman made.

ELECTORAL COMMISSION

The hon. Member for Gosport, representing the Speaker's Committee, was asked—

Electoral Registration

Harry Barnes: Whether the Commission plans to make proposals for further developing the facilities for rolling electoral registration.

Peter Viggers: The commission has recommended changes in the law enabling voters to register closer to polling day, and the piloting of online and telephone registration. The Government indicated last month that they intend to act on the commission's recommendations with regard to registering closer to polling day, and will give further consideration to the development of online and telephone registration.

Harry Barnes: That is a welcome reply. Is not one of the shortcomings of the otherwise progressive move towards rolling electoral registration that it tends to depend on people who have moved home transferring their registration? The last thing that people have on their mind when they move home is electoral registration. The time when they will have it on their mind is when an election is called. That is when they need an opportunity to change their registration through rolling electoral registration so that they can vote in the place they have moved to.

Peter Viggers: The House always listens to the hon. Gentleman with interest because he does not so much follow this subject as lead it, and many of the details in his private Member's Bill in 1993 have become law. Yes, the Electoral Commission agrees with the thrust of the hon. Gentleman's question. It believes that it should move to individual registration in the longer term, but certainly it should move to registration nearer to the date of the election. However, as I have explained in an earlier question, it is most unlikely that this will be implemented before the election because it will require primary legislation.

Point of Order

Tam Dalyell: On a point of order, Mr. Speaker. At the risk of irritating you, may I ask whether you have had a request from either the Foreign Office or the Ministry of Defence to make some kind of report to the House on the impact of the continuing violence on the elections that are to take place very soon? Apparently, journalists are holed up in the green zone and unable to go out and see what is happening on the streets of Baghdad. I know that it is irritating to go back to this subject, but it is desperately important.

Mr. Speaker: The Father of the House is never irritating, he is just persistent. He asked this morning for an urgent question on this matter and I refused him, but perhaps the Ministers concerned will have heard his plea.

BILL PRESENTED

Crown Employment (Nationality)

Mr. Andrew Dismore, supported by Ms Karen Buck, Mr. Iain Coleman, Mr. Andrew Love, Tony Wright, Sir Sydney Chapman, Linda Perham, John Austin, Mrs. Annette L. Brooke, Keith Vaz and Mr. Stephen Pound, presented a Bill to make provision for and in connection with the removal of general restrictions as to nationality which apply to persons employed or holding office in any civil capacity under the Crown; and for connected purposes. And the same was read the First time; and ordered to be read a Second time on Friday 13 May, and to be printed. Explanatory notes to be printed [Bill 40].

Orders of the Day
	 — 
	Constitutional Reform Bill [Lords]

[Relevant documents: Twenty-third Report from the Joint Committee on Human Rights, Session 2003–04, Scrutiny of Bills: Final Progress Report, HC 1282; First Report from the Constitutional Affairs Committee, Session 2003–04, HC 48, on Judicial Appointments and a Supreme Court (court of final appeal), and the Government's response thereto, Cm 6150.]
	Order for Second Reading read.

Estelle Morris: I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

Mr. Speaker: I inform the House that I have selected the amendment in the name of the Leader of the Opposition.

Christopher Leslie: I beg to move, That the Bill be now read a Second time.
	I am pleased that, after much debate and discussion in the other place, the Bill has at long last come to the House of Commons. I shall address the details of the Bill in due course, but we must not neglect the fundamental principles driving the reform, namely, the need to modernise our constitution so that our institutions can serve the public in a clearer, more transparent and more effective manner; so that our courts and justice system can be administered by a full-time Minister clearly accountable to Parliament; and so that the relationship between the three arms of the state—Parliament, the judiciary and the Executive—is settled, clarified and easier to understand, in turn making each better fitted to carry out its vital roles in a modern democracy.
	The Bill therefore proposes the reform of the office of Lord Chancellor, removing the blurred lines between political and judicial functions, so that the post holder, as a full-time Cabinet Minister, can concentrate on the administration of the justice system, no longer sitting as a judge, and we hope no longer tied to the Woolsack in the other place as its presiding officer. The Bill sets up a new judicial appointments commission, an independent body responsible for selecting our judges in the future, and it creates a new supreme court, putting beyond any doubt the independence from politics and the legislature of the highest appellate court in the United Kingdom. There will be a clearer separation of the powers of Parliament, the judiciary and the Executive, and greater confidence in the shape and nature of each branch of our constitution.

Patrick Cormack: It would be appropriate if the hon. Gentleman could tell us at this stage what these changes will cost.

Christopher Leslie: The hon. Gentleman must wait for that section of my speech, when I shall be happy to elaborate on that particular matter—I know that he will wait patiently.
	There has been wide consultation on the reforms. Many academics and observers of our constitution have long called for a properly independent judicial appointments process and a separate supreme court for the UK. The Lord Chief Justice and members of the senior judiciary support the Government, and a Select Committee of the House of Lords has meticulously scrutinised the Bill.

Dominic Grieve: I am startled to hear that the Lord Chief Justice supports the Government. I recall the Lord Chief Justice saying that, given the constitutional crisis that the Government precipitated by announcing their back-of-the-envelope changes in summer 2003 without any consultation, certain aspects of the Government's proposals—in particular, the concordat, on which the Lord Chief Justice insisted—make the best of a bad job.

Christopher Leslie: That is not a correct representation of the Lord Chief Justice's views. A lot of time has passed since the Bill was introduced—as I have said, it was debated at length in the other place—and the robust package of measures has wide support, including from members of the senior judiciary. We have responded to the long debate in the other place and have accepted a number of changes.

Graham Allen: Will my hon. Friend have no truck whatever with the argument that this is a Johnny-come-lately policy? It is more than 12 years since the party of which we are members agreed the basic points in the package. Some of us think that the process has taken far too long to come to fruition, rather than its having been done on the back of an envelope in the past 18 months.

Christopher Leslie: My hon. Friend makes the reasonable point that the measures are fundamental and overdue. They are important, in so far as they help to clarify the relationship between the different branches of our constitution.

John Gummer: Would it not have been easier to maintain the position described by the hon. Member for Nottingham, North (Mr. Allen) if the announcement had not been made before any consultation had occurred and had not been seen as a fudge? If we were starting afresh, one might believe in the process, but not after the Prime Minister made such a faux pas in the first place.

Christopher Leslie: All good ideas have to start somewhere. This one started with the announcement by the Prime Minister, which subsequently resulted in numerous consultation papers and a lengthy consultation process. The process in the other place was even longer and involved accepting a number of changes to the Bill.

Vera Baird: This point relates to theargument advanced by the hon. Member for Beaconsfield (Mr. Grieve): on Second Reading, the Lord Chief Justice referred to the Bill as
	"a piece of great reforming legislation",
	and said that
	"it will rank in importance with the great constitutional instruments of the past."—[Official Report, House of Lords, 7 December 2004; Vol. 655, c. 759.]

Christopher Leslie: My hon. and learned Friend always has the facts at her fingertips, and I am grateful for that quote.
	We have reflected on the consideration of the Bill in the other place and have accepted a number of changes. The Government accept the decision of the House of Lords on the retention of the title and formal office of Lord Chancellor. Whether the post holder is called "Secretary of State for Constitutional Affairs" or "Lord Chancellor", or whether he has both titles, is not a matter of great significance. What matters most is the substance of the post, the nature of the job and whether the position is reformed so that the post holder's duties are no longer contradictory.
	If the role of the head of the judiciary can pass to the Lord Chief Justice, and with it many of the judicial functions incompatible with the role of a political Cabinet Minister, then the office of Lord Chancellor can continue, but in that substantially reformed way. The Bill continues the office of the Lord Chancellor, but in a significantly altered and more appropriate form.

Alan Beith: Does the Minister recall that the Constitutional Affairs Committee indicated that the important point is that the office of Lord Chancellor, which it felt should continue at least for the time being, should be in position firmly to assert and protect judicial independence, particularly when senior Ministers might appear to impair and threaten it, and that the post holder must therefore be someone of considerable seniority who is not looking for further promotion?

Christopher Leslie: I shall comment later on the other protections that we have added, with particular reference to the office of Lord Chancellor and the holder of that ministerial office. We have managed to strike the right balance in having flexibility for the Prime Minister in making appointments while enshrining the independence of the judiciary in its relationship with that post.

Dominic Grieve: I, too, commend the parts of the Lord Chief Justice's speech on Second Reading that the hon. and learned Member for Redcar (Vera Baird) commented on, which dealt with the concordat and the manner in which the Government had carried out their proposals. Can the Minister provide reassurance that the Government will preserve the substance of the amendments on the Lord Chancellor that were drafted in another place to ensure that we retain not only the Lord Chancellor's name in carrying out the functions of the Secretary of State for Constitutional Affairs, but the added protections of his sitting in the House of Lords and being a lawyer?

Christopher Leslie: I may be giving way a little too often, because I was about to come to that. Perhaps that is something that I can learn for the future.
	Before dealing with the hon. Gentleman's question, I want to restate why these reforms are necessary. Under the current system, the Lord Chancellor holds potentially conflicting judicial and political roles, and sole responsibility for the whole judicial appointments process. In our view, it is no longer appropriate for a Government Minister to have such unfettered discretion in the appointment of judges. The Lord Chancellor also holds a number of outdated, inappropriate and anachronistic functions. Reform of the office will enable that Minister to focus on his and the Government's main priority—the delivery of essential public services.
	The Bill gives all Ministers—particularly the Lord Chancellor—and those responsible for matters relating to the judiciary and the administration of justice a statutory duty to uphold the independence of the judiciary. It ends the Lord Chancellor's judicial functions and ensures that his responsibilities for the judiciary are exercised under new transparent statutory arrangements with the Lord Chief Justice.

Edward Garnier: Will the Minister give way?

Christopher Leslie: I wanted to turn to the detail of the Bill, but I shall give way to the hon. and learned Gentleman before doing so.

Edward Garnier: The Minister says that the Government want to modernise the operation of the judicial appointments system and make it transparent. Why then did the Lord Chancellor for the transitional period, as he likes to call himself, appoint his pupil master as president of the family division?

Christopher Leslie: We have to operate under the law as it stands, but we want to reform it. The hon. and learned Gentleman argues rather perversely that he does not like the existing system yet wants to retain it. I am not sure that he is striking the right chord.

Keith Vaz: I congratulate the Minister and the Lord Chancellor on listening to many people's concerns about the initial package that was put before both Houses last year and on adopting several of the changes. How can he ensure that the Government's commitment to equal opportunities—the Lord Chancellor is of course very committed to equal opportunities—will be transferred to the new judicial appointments commission, since the commission is under no obligation to accept what the Lord Chancellor has said?

Christopher Leslie: As a broader, wider and more diverse body, a judicial appointments commission for England and Wales will have a positive and beneficial impact on the diversity of the appointments that it makes and the range of persons from whom it can select, notwithstanding that all appointments are obviously made solely on the basis of merit. I shall come to some specific points on diversity later.

Vera Baird: Will my hon. Friend give way?

Christopher Leslie: I want to make a little progress first.
	Part 1 concerns the rule of law and was added in the other place. The provisions ensure that nothing in the Bill adversely affects the constitutional principle of the rule of law. In making these changes, it is important that we do not lose the principles that have served us well in the past. The rule of law is one such area, and the new provisions improve and enhance the Bill.
	Part 2 relates to reform of the office of Lord Chancellor. Throughout the Bill's passage in the other place, peers felt extremely strongly about the retention of the title of Lord Chancellor. Amendments were therefore made to facilitate that. As I said, although we believe that our original intention to abolish the office was well founded, we accept that many attach a symbolic value to the title. The Government do not feel that retaining the office and title of Lord Chancellor significantly affects the substance of our reform objectives, so we can accept that change.
	Let me deal with the question about the insistence of the other place that the person who holds the office of Lord Chancellor must be a Member of the House of Lords and must have either held high judicial office or been a practising lawyer for at least 12 years. Given the substantially reformed nature of the post, we firmly believe that there is no longer any fixed requirement for the Lord Chancellor always to be a peer and a lawyer.
	A Prime Minister should be able to appoint the best person for the job, whether they sit in the House of Lords or the House of Commons, rather than having a restricted choice. It would be perverse deliberately to prevent a person from holding a purely ministerial post simply because they were an elected representative. There will no longer be a need for the office holder to be a peer. Given that the Lord Chancellor is responsible for nearly £3 billion of public expenditure, it is surely reasonable that in future a Prime Minister can appoint a candidate who is capable of being held accountable to either House of Parliament, not just one House.

Chris Bryant: Historically, one of the requirements for the Lord Chancellor is that he is not a member of the Roman Catholic Church. Will that requirement remain or change? Why is the Lord Chancellor's oath, unlike the oath in this House, given in only a theistic way? Perhaps a future office holder might not have a religious faith.

Christopher Leslie: On the detailed second point, I understand that the Oaths Acts allow for affirmation and so on. Although the Bill does not deal with that, other legislation does. On the first point, the Bill does not make the change about which my hon. Friend asked, but perhaps he can raise the matter at a later stage of its passage.

Patrick Cormack: If the Government insist on removing the amendment that the House of Lords has inserted, how can they guarantee getting the measure through before the election?

Christopher Leslie: As the hon. Gentleman's party knows, there are no guarantees in politics. If the House of Commons decides to overturn the amendment, it would not be wise for the House of Lords to insist on it, but that is a natural part of the to-ing and fro-ing of the legislative process.
	On whether there should be a condition such as being a peer or a senior lawyer, the Lord Chief Justice, speaking for the judiciary as a whole, has made it clear that a Minister from either House could perform the functions of the new Lord Chancellor post. The Lord Chancellor will not be a judge and no more needs to be a lawyer than the Secretary of State for Health needs to be a doctor or the Chancellor of the Exchequer needs to be a qualified accountant.
	Legal qualifications are not an essential requirement for a ministerial post that will in future act on recommendations from an independent judicial appointments commission, whose job will be to weigh up candidates' precise legal abilities. The Government will also have the Attorney-General to call upon for any advice on legal questions.

Dominic Grieve: I accept that there will be a judicial appointments commission. Indeed, it is the one aspect of the Bill that I am broadly happy to welcome. If the Bill had been confined to that, I would welcome it even more. However, the Under-Secretary will acknowledge that it retains important powers for the new Minister both in making a final selection and in maintaining links with the judiciary to initiate work by the judicial appointments commission in selecting new judges. In those circumstances, is not the other place correct to insist that the Lord Chancellor should be a unique Minister and not simply any Minister?

Christopher Leslie: The Lord Chancellor will be a unique Minister and will have several protections, as set out in the Bill. However, I am not convinced that that extends to the absolute requirement that the Lord Chancellor must be a senior lawyer and a peer. There are no especially strong arguments given the new nature of the ministerial post. The Government will therefore seek to remove the requirements so that the Prime Minister's choice of office holder will not be so restricted.
	The time has come for a more appropriate senior structure for our judiciary. The Bill establishes the Lord Chief Justice rather than the Lord Chancellor as the head of the judiciary in England and Wales. We will introduce amendments to provide similar provisions for the Lord Chief Justice in Northern Ireland.

Gwyneth Dunwoody: I hesitate to get involved in this, because I must be one of the few non-lawyers in this place—[Hon. Members: "No!"] Oh, I am glad that some other peasants have got in by accident. Is my hon. Friend the Minister using the theory behind private finance initiatives, which works on the assumption that because someone knows nothing about a particular profession, they should automatically be put in charge of it? Or am I misinterpreting what he is doing?

Christopher Leslie: I am not a lawyer either, but I think that having a fresh perspective on a particular responsibility is sometimes a benefit, rather than a disadvantage. There are pros and cons on both sides of this argument, but we do not feel that the post-holder should be tied to one particular qualification. That would not be justified by the nature of the new ministerial post.
	The Bill also makes new arrangements for many of the statutory functions of the Lord Chancellor that relate to the judiciary. These will either be transferred to the Lord Chief Justice completely, or be exercised jointly with the Lord Chief Justice, with requirements for consultation or concurrence between them and their counterparts in Scotland and Northern Ireland as appropriate. This division of responsibilities was agreed between the Lord Chancellor and the Lord Chief Justice and is known as the concordat. Reflecting on this historic agreement, the Lord Chief Justice has commented that:
	"The judiciary considers that the parts of the Bill that reflect the concordat are a highly desirable package of measures designed to ensure the continued independence of the judiciary."
	He added that he
	"would consider it an unsatisfactory situation if the present position were left in place."
	The concordat was presented to Parliament on 26 January last year, and amendments to the Bill were tabled by the Government in the other place to reflect that agreement.

Richard Shepherd: The Minister referred to the "continued independence of the judiciary" being maintained. It is independent now. What is the point of this Bill, if we already have confidence in the existing arrangement?

Christopher Leslie: We need to strengthen that independence further, and we are doing that by taking away the judicial role of the legislature and taking away the legislating role of the judiciary. I hope that that explains the measures to the hon. Gentleman in a nutshell.

Dominic Grieve: Will the Minister now take the opportunity to accept that the original proposals did not envisage a concordat, and that the concordat was required because of the alarm of the judiciary, which was reflected in the comments of the Lord Chief Justice that, without it, this measure would constitute a serious transfer of power to the Executive that would affect the independence of the judiciary? That is why the concordat was necessary. This colours the entire nature of this debate and, particularly, the Government's bad faith in respect of it.

Christopher Leslie: I am delighted that the hon. Gentleman thinks that the concordat is necessary. We do, too, and it is now on the table and part of the package that we are offering. I restate the quote from the Lord Chief Justice that he
	"would consider it an unsatisfactory situation if the present position were left in place."—[Official Report, House of Lords, 8 March 2004, Vol. 658, c. 1004.]
	We have taken great care to do nothing to diminish the independence of the judiciary. On the contrary, clause 4 of the Bill provides a new statutory guarantee of continued judicial independence. It creates a duty on all Ministers of the Crown and all others with responsibility for the administration of justice to uphold the continued independence of the judiciary.

Vera Baird: Coming back to what the hon. Member for Beaconsfield (Mr. Grieve) said a moment ago, I should like to point out that Lord Woolf said on Third Reading that
	"even in its original form, the judiciary was supportive of the Bill . . . as a package of reforms that would significantly improve the protection provided for their independence."—[Official Report, House of Lords, 20 December 2004; Vol. 667, c. 1555–56.]

Christopher Leslie: Yet again, my hon. and learned Friend helps to give breadth and depth to the debate. That was most useful.

Edward Garnier: I would not like the Minister to ruin a great legal and political career by giving too much praise to the hon. and learned Lady. Will he tell us which parts of the concordat are to form parts of the legislation, and which parts we are simply to rely on by placing our trust in the Government?

Christopher Leslie: Some parts are in the Bill and some are not. That is by agreement, and we shall no doubt go through those matters at great length in Committee, much of which, hon. Members will be delighted to know, will be held on the Floor of the House. The hon. Gentleman will have plenty of opportunities to go into that issue in detail later.
	The Bill also places an additional duty on the Lord Chancellor to have regard to defending the continued independence of the judiciary. That duty will also apply, for example, in his handling of the recommendations from the new judicial appointments commission and in funding and running the administration of the courts. Clause 5 amends the Justice (Northern Ireland) Act 2002 to ensure that the provisions made by that Act in relation to the guarantee of judicial independence are consistent with the provision made by clause 4.
	Our judiciary will have strengthened independence, but will still have a dialogue with the Government and Parliament. In recognition of the important contribution of the Lord Chief Justice of England and Wales, the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland, clause 6 provides that they may table written representations to Parliament on matters relating to the judiciary or the justice system. In addition, the Bill recognises the important role of the Lord Chief Justice in respect of the judiciary. It sets out his responsibilities, including representing the views of the judiciary to the Government, and the training, guidance, welfare and deployment of the judiciary of England and Wales.
	The role of the Lord Chancellor in delivering the concordat will be fundamental. It has been agreed between the Lord Chief Justice and the Lord Chancellor that functions of the Lord Chancellor that relate to the judiciary and the court system should not, in future, be transferable away from that Minister without primary legislation. That is set out in clause 17. It is another protection that the Chairman of the Committee has mentioned.
	I turn now to the question of who will act as the presiding officer of the other place. The Government continue to believe that, for a busy Minister of the Crown, sitting also as a Speaker or presiding officer over a House of Parliament is a heavy burden indeed. We therefore take the view that the House of Lords should have the benefit of a presiding officer who can devote his or her time solely to its service.
	Ultimately, of course, decisions on who should be the presiding officer of the other place are a matter for their lordships themselves as part of the Standing Orders of the House of Lords, which currently stipulate that the duties form part of the role of the Lord Chancellor. But it is undoubtedly odd that any House of Parliament should automatically accept the appointee of the Prime Minister as its Speaker or presiding officer, a state of affairs not conducive to the supremacy of Parliament in our constitution. The Bill therefore helps to facilitate the process now in train in the other place about who might take on that aspect of the Lord Chancellor's current functions. The House of Lords has not yet formed its view, nor decided the title of that presiding officer.
	Part 2 of the Bill therefore allows the statutory functions of the Lord Chancellor, in his capacity as Speaker of the other place, to be exercised by anyone who fills that role in future.

Paul Tyler: I hope that Members on both sides of the House will accept what the Minister says. I would put the case even more strongly, because it is surely wrong that a member of the Executive should preside in either House of Parliament. It is important to try to keep apart the roles of the Executive and the legislature, and that proposition should have the support of every right hon. and hon. Member.

Christopher Leslie: I tend to agree with the hon. Gentleman on that point, although he will understand that it is for the other place to decide on the arrangements for its presiding officer.

Patrick Cormack: Should not we put it on record that the so-called presiding officer in the other place fulfils a function wholly different from that performed by Mr. Speaker in this place? The other place is self-regulating and wishes to remain so. Whoever sits on the Woolsack does not exercise the power and responsibility of Mr. Speaker, and the title of that person should not be confused with that of Mr. Speaker.

Christopher Leslie: I understand that there are differences between the two presiding officer functions, but that is not to say that there are not public expectations about the role of the individual who sits on the Woolsack or that he or she will not undertake presiding officer duties in the course of business in the House of Lords. It is not for us to dictate to the House of Lords, at this stage, the arrangements that it should make for its presiding officer.

Edward Garnier: If the House of Lords decides that it wishes its presiding officer—whatever he will be called—to be the present Lord Chancellor, but the Prime Minister decides that the Lord Chancellor's office should be held by a Member of the House of Commons, how will the Government square that circle? [Interruption.]

Christopher Leslie: As voices off remind us, it would be very difficult to do so. However, it would be a matter for the other place to find an appropriate person to be its presiding officer.
	Part 3, another fundamental part of the Bill, would create a new supreme court for the United Kingdom, separate from Parliament but with the current appellate jurisdiction of the House of Lords and the devolution jurisdiction of the Judicial Committee of the Privy Council. Two principles underpin the Government's proposals for a United Kingdom supreme court: first, the functional separation of the judiciary from the legislature, and secondly, the need for greater constitutional clarity and visible independence for the United Kingdom's highest court.
	The ultimate court of appeal is doing something different from the legislature; it should be doing it separately, and should be clearly seen to be doing it separately. Functional separation of the judiciary at all levels from the legislature and the Executive is a cardinal feature of any modern, liberal and democratic state governed by the rule of law.
	Furthermore, the Law Lords are judges, not legislators. They are specifically appointed to act as the UK's supreme court
	"for the purpose of aiding the House of Lords in the hearing and determination of appeals",
	in the words of the Appellate Jurisdiction Act 1876. They are there as judges and it is no longer tenable to see those judges act in the legislative role.
	I emphasise that the proposals imply no criticism of the performance of the Law Lords. I know that they are admired around the world and have always acted with the utmost integrity, independence and objectivity. However, that is not reason enough to maintain the current position. The very fact that in recent years the Law Lords have had to exercise a self-denying ordinance neither to speak nor vote in the House of Lords on matters that might come before them in a judicial capacity indicates that there is something fundamentally flawed in the current arrangements, however well they may seem to work.

John Gummer: The hon. Gentleman was at great pains to say that nothing had gone wrong so far, yet he then said that as people do not understand that nothing has gone wrong so far, we have to change things. I do not understand what has happened to our society if we are unable to understand something that we had been perfectly able to understand, and people had been perfectly well able to run, for so many years, and which is, to quote the Minister, well known and honoured throughout the world. Why can we not go on as we have done?

Christopher Leslie: Having the Appellate Committee as the highest court in the legislature has not sat comfortably for more than a century. The Appellate Jurisdiction Act, although it was not commenced, sought to establish a separate UK supreme court. For various reasons, that did not happen at the time. The initiative is not exactly new but it is long, long overdue.

Clive Soley: It is important to remember that most of us have been dissatisfied with the situation because the Lord Chancellor, who was appointing judges, was an active party politician. Ever since I saw Lord Hailsham on the beach in his bathing costume ringing the bell for the Tory party and then claiming that he was completely independent, I have viewed the system with some suspicion.

Christopher Leslie: Matters of family honour may need defending on that point, but I hear what my hon. Friend says.
	Half the Law Lords are reported to be uncomfortable with the present arrangements. If we do not move to reform, how long will it be before a majority are unhappy? The time has come for our highest court to be a separate institution—not only separate, but seen to be separate. By establishing a supreme court, we shall create a visible apex of an independent United Kingdom judicial system, and we shall increase public comprehension of the judicial system, both in this country and abroad.

Patrick Cormack: The Minister is exemplary in giving way, but I must correct one point made by his hon. Friend the Member for Ealing, Acton and Shepherd's Bush (Mr. Soley). When Lord Hailsham rang his bell he was chairman of the Conservative party, not Lord Chancellor. As Lord Chancellor, he exercised his functions with great distinction and complete impartiality.

Christopher Leslie: Politicians should stick to politics and the judiciary should stick to judging. That is the clear direction in which we are travelling and there is not a massive amount of controversy about that issue.

Annabelle Ewing: The Minister referred a moment ago to the fact the new supreme court would be an independent UK judicial system—I think that that was the phrase that he used—but given that the funding arrangements for the new supreme court will still be part of the Department for Constitutional Affairs' overall budget, the chief executive of the new supreme court will be appointed by the DCA Minister, and the DCA Minister will retain functions that relate to the judiciary in England and Wales, how can it be argued therefore that all aspects of the new supreme court will be entirely distinct and separate from the legal system south of the border? Surely it therefore falls foul of the 1707 treaty of Union.

Christopher Leslie: The hon. Lady is wrong. First, the Department for Constitutional Affairs is a United Kingdom Department, not specifically relating to England and Wales. Secondly, the post of chief executive of the new supreme court will not be simply a ministerial appointment in the way that she describes. Thirdly, although there must be some accountability to Parliament for the taxpayers' money expended in the running and operations of the United Kingdom supreme court—ministerial accountability is therefore the way to provide that—we will provide protections separate from the normal run-of-the-mill votes and estimates that departmental budgets come under, and those resources will be ring-fenced. That will provide adequate protection for the new supreme court, so that it is seen to be independent, and is given the measure of independence set out in the Bill.
	Understandable concern has been expressed about where the supreme court will be located and the cost of such a building. I am sure that Opposition Members are keen to consider that. The building for the supreme court should be a reflection of the court's importance and its place at the heart of the justice system and the constitution, yet simultaneously not excessive or lavish.
	The current accommodation for the Law Lords in the Palace of Westminster leaves a lot to be desired. Their offices are cramped and inconveniently located, and constraints on the space available limit the number of support staff. Quite separately from the constitutional principles, there is a strong case for improved facilities. We have therefore considered many different building options over the past year, and after detailed evaluation and close consultation with the Law Lords, our preferred option is Middlesex Guildhall, which is on the opposite side of Parliament square from Parliament, and currently a Crown court building. We believe that it can be adapted to meet the operational requirements of a modern supreme court and provide a building of sufficiently prestigious design and location—all, of course, subject to the normal planning controls.

Dominic Grieve: I certainly agree with the Minister that the Law Lords may have divided views, but before history is rewritten, the Minister must have read the speech of Lord Nicholls in respect of the supreme court and his comments, as a Law Lord, about the adequacy of the accommodation currently available in the House of Lords. Would he like to confirm whether he has done so? In fact, in that speech, the indication from one Law Lord was that he considered that the accommodation provided in the House of Lords was entirely adequate.

Christopher Leslie: We could bandy about various quotes from different Law Lords. Certainly, some Law Lords hold that view; others hold a different view. For example, Lord Bingham said:
	"I doubt if any supreme court anywhere in the developed world is as cramped as our own."
	He then said that there was an
	"acute shortage of space . . . I cannot see why the fourth richest economy in the world cannot"
	have its own building.
	Lord Steyn—another Law Lord—said that
	"the accommodation available for the final court of appeal"
	was
	"not adequate".
	Different Law Lords have different views, but I do not think that by any stretch of the imagination, the hon. Gentleman is unable to envisage improvements that could be made to the accommodation for our highest court of appeal in the land—something that he will hold as a respected institution that deserves to be supported in the best way possible, to help to preserve the judiciary's independence.
	The cost of establishing the supreme court at Middlesex Guildhall will be approximately £30 million, but we will also need to ensure that the criminal justice system is not adversely affected by the selection of that building. We will therefore provide additional courtrooms to handle the Crown court work currently undertaken at the Guildhall, at an estimated further cost of £15 million.
	The Government are committed to implementing the new supreme court properly and to achieving value for money. That is why clause 120 contains provisions to ensure that the supreme court can not be implemented until an appropriate building is ready to receive it. Those provisions demonstrate our pledge that we will not implement the supreme court arrangements prematurely.

Dominic Grieve: The Minister said that Middlesex Guildhall was the preferred option and then went on to say in some detail that, in fact, it was the Government's choice. However, Lord Bingham, who wants a supreme court, has expressed extremely unfavourable views about the Guildhall.

Christopher Leslie: Again, I do not think that is a fair categorisation. No building is absolutely perfect. I have long preferred Middlesex Guildhall, and I know that others hon. Members have reached that conclusion. It is seems an obvious conclusion to draw. The building is already there, we can see it and we know what it looks like. It looks right, it feels right and it is in the right location. It is my preferred option—but of course, it remains subject to the normal planning constraints that we have to go through. It remains a preferred option at this stage while we make sure that all those processes are undertaken properly.

Annabelle Ewing: The Minister is most generous in giving way again. Paragraph 330 of the explanatory notes—I recognise that they are only advisory—states that
	"it will be necessary to provide additional courtrooms to take on Middlesex Guildhall's Crown Court work."
	Will he clarify whether these additional courtrooms will be located in the Middlesex Guildhall or in an entirely different building somewhere else in London?

Christopher Leslie: The latter. The courtrooms would have to be located somewhere else, but they will be in London.
	I want to mention briefly other aspects of this part of the Bill. Clauses 22 to 28 set out the arrangements for the selection of members of the supreme court. Clauses 45 to 50 also make provision for the governance of the court to be as independent as possible—I answered that point earlier in response to a question from the hon. Lady—so that it is compatible with its position as a body in receipt of public funds. As a logical consequence of the separation between the judiciary and the legislature, clause 109 restricts the rights of Members of the House of Lords to sit and vote, for as long as they hold full-time judicial office.

Edward Garnier: Will the Minister give way?

Christopher Leslie: Oh, go on. I will give way again.

Edward Garnier: I know that it is boring for the Minister to have to explain himself, but that is what he is here to do. I want to ask about clause 65, entitled "Exercise of powers to reject or require reconsideration". The judicial appointments commission will be able to put up a name to the Minister and he will be able to reject it. However, clause 65(2) says:
	"The power of the Minister . . . to require the selection panel to reconsider . . . is exercisable only on the grounds that, in the Minister's opinion—
	(a) there is not enough evidence that the person is suitable for the office concerned, or
	(b) there is evidence that the person is not the best candidate on merit."
	Those are rather interesting expressions. What sort of evidence is the Minister is likely to have that the commission will not have had or considered? What is it about the merits of the candidate that may not attract the Minister but may have attracted the commission?

Christopher Leslie: I happen to think that the drafting of clause 65(2) is pretty good, in that it does not go unnecessarily into the definition of that evidence, and keeps it fairly broad, but is challengeable also. For example, evidence could be that knowledge of a criminal conviction has emerged that was not available to the judicial appointments commission. That is the sort of issue, but we will go through some of the particulars in Committee.
	Part 4 creates a judicial appointments commission and a judicial appointments and conduct ombudsman for England and Wales. Selection must be solely on merit, but this part of the Bill also sets out the process to be followed in appointing judicial office holders and in providing for complaints to be made to the ombudsman. It also makes provision for a new disciplinary process in relation to the judiciary. The Government believe that creating a judicial appointments commission for England and Wales will itself send a powerful message that judicial appointments are to be open, transparent, accessible, and removed from the control of a single Minister. It will also help to promote equality and diversity among those appointed to our judiciary.
	Although the quality of our judges is not in doubt, the means by which they are appointed is out of step with public expectations regarding the way in which government should work. Our current arrangements have produced a judiciary that, although excellent in many ways, is startlingly homogenous. There are hardly any solicitors, few women lawyers and only one ethnic minority lawyer in senior judicial posts. I cannot believe that that is representative of the pool of legal ability or talent available for appointment. I am confident that the new judicial appointments commission will provide an appointments system based on merit alone. Crucially, however, as I said earlier, a broader appointments process will help to recognise merit from the wider pool of talent available, thus drawing on the full diverse range of those qualified for judicial appointment, regardless of their gender, or social or ethnic background.

Dominic Grieve: As I indicated earlier, although this part of the Bill will require close scrutiny, we support the broad thrust of it. Given that it is one of the main pillars of an important constitutional Bill, will the Minister explain why virtually none of it will be debated on the Floor of the House?

Christopher Leslie: The aspects of the Bill to be considered in Committee on the Floor of the House and Upstairs in a Committee Room will ultimately be voted on by the House. The House will make its judgment, but I believe that we are following convention.

Richard Shepherd: The Minister says that merit is the primary consideration, so I am puzzled why there is conflict between that concept and the range of other matters that the Minister particularised, such as diversity. Such conflict does not seem to exist. If the   measure is about merit, why is he introducing a wider system because surely that undermines that concept?

Christopher Leslie: I think that I understand the hon. Gentleman's argument, but I hope to persuade him that he is wrong. If one makes a choice from a narrow shortlist, one can make an appointment on merit. However, if the pool of those encouraged to apply were broader and a wider range of applications were encouraged—I think that the judicial appointments commission could help to devise new ways of achieving that—appointments on merit could still be made, while helping to expand the diversity of, and equality of opportunity for, those who put themselves forward for appointment. I do not think that the two concepts are inconsistent. At the heart of the reforms is our drive to build further on people's confidence in key institutions such as the judiciary.

Oliver Heald: On a point of order, Mr. Speaker. Of course, it will not be possible for the House to debate the programme motion to which the Minister referred, because of the changes that have been made to our rules. Have you received a request from the Leader of the House to come here to explain why, with his programme motion, he is breaking a constitutional convention that has been in place since 1945 and has applied to every constitutional measure of first-class importance under this Government? This is the first time that the Government have tried to break that important precedent, and they will not even explain themselves.

Mr. Speaker: That is not a matter for the Chair.

Patrick Cormack: rose—

Christopher Leslie: I hear what you say, Mr. Speaker, and now give way to the hon. Member for South Staffordshire (Sir Patrick Cormack).

Patrick Cormack: You have made it clear, Mr. Speaker, that this is a matter for the Minister, so why have the Government broken the convention? It is slightly disingenuous for the amiable Minister to suggest that the House will decide, because the Government have tabled a motion—which means that they have effectively made their decision. What is the defence for such an extraordinary unconstitutional move?

Christopher Leslie: I am afraid that the decision to accept the programme motion will be taken not by the Government but by the House. The House of Commons will decide how to scrutinise its business.

Douglas Hogg: rose—

Richard Shepherd: rose—

Christopher Leslie: I shall make a little progress.
	We are fortunate that our judiciary has an exceptional reputation for intellectual ability, integrity and independence. Judges play a key role in the justice system and it is vital that the public should have confidence in them. To achieve that, we need to ensure that there is complete confidence in the way in which the judiciary are selected and appointed. Of course we need a system that selects the best people on merit, but it must do that in a modern and efficient way.

Douglas Hogg: May I take the hon. Gentleman back to the question asked by my hon. Friend the Member for South Staffordshire (Sir Patrick Cormack)? The hon. Gentleman could at least explain why the Government's proposal is inconsistent with past precedent.

Christopher Leslie: I do not accept that our proposal conflicts with past precedent. There will be ample debate on the Bill in the Committee of the whole House and in Standing Committee. If the right hon. and learned Gentleman does not like the programme motion, he is perfectly free to vote against it.

Richard Shepherd: The Minister made a serious assertion in his last comment to my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg). It is unusual for a Minister and a Government to put a guillotine motion on the Order Paper, no less. On a constitutional Bill, there is no opportunity for the House to express any opinion in advance of the vote, which will be whipped, as to the reasonableness of the timetable according to which the Bill is being forced through.

Christopher Leslie: The hon. Gentleman has long-held, strong views on programme motions, and I do not want to rehearse those again. He has his opinion; other Members have theirs. I remain of the opinion that the balance of consideration in Committee of the whole House and in Standing Committee is right, because, as in the other place, the Bill's most important constitutional aspects will be given an ample airing on the Floor of the House.

Patrick Cormack: On a point of order, Mr. Speaker. In view both of your ruling, which we completely understand, and of what the Minister has said, will you make it plain that it will be permissible to refer fairly extensively to the programme motion during the Second Reading debate?

Mr. Speaker: I would say yes, within reason.

Christopher Leslie: What a strange turn of affairs if the main point of contention from Opposition Members is the time allocated to the debate rather than the substance of the Bill. Indeed, we have probably spent more time on the interventions about whether the programme motion has the correct division of time between the Floor of the House and the Standing Committee than we have on the Bill. Conservative Members need to get a little perspective on the issue.

Oliver Heald: Almost everything that the Minister has mentioned, from whether the Lord Chancellor should be a lord, and whether he should be a lawyer, to the transfer of functions—all the points of detail that he has prayed in aid as being of interest to the House—will not be discussed in Committee of the whole House. How can he justify that?

Christopher Leslie: I believe that the Bill's most fundamental constitutional aspects will be debated in Committee of the whole House; the other aspects, which are more appropriate for the Standing Committee, will be debated at length and in great detail by that perfectly capable body.

John Gummer: I thank the Minister, whose courtesy is renowned, for giving way. He has told us that the Bill's purpose is primarily to address the fact that people outside do not understand the complications and what appear to be the contradictions in our present system. Does he not understand that the same is true of what he has just said? People outside will not understand why there is no procedure whereby we will be able to discuss, on the Floor of the House, a major constitutional change. He is arguing one thing in the case of the whole Bill, and exactly the opposite in this case. That is why we have spent so much time on the point.

Christopher Leslie: We will have to agree to disagree on the matter. It is not true that we will have no opportunity to debate the judicial appointments commission on the Floor of the House, because as the Bill progresses through its parliamentary consideration there will, of course, be Report stage, when we will be able to look in detail at many of those matters.
	I want briefly to mention the operation of the judicial appointments commission, which will select judges for appointment in England and Wales. It will be composed of 15 members: six lay members, five judges, one solicitor, one barrister, one tribunal member and one magistrate. The chair will be a layperson, emphasising independence both from the judiciary and from the Executive. The commission will recommend to the Lord Chancellor one candidate for each vacancy selected, solely on merit. No one will be appointed who has not been selected by the commission.
	The Lord Chancellor will have a very restricted role: he or she will be able to reject a candidate once and to ask the commission to reconsider a selection once, as I said in answer to an intervention by the hon. and learned Member for Harborough (Mr. Garnier). The arrangements will ensure that the role of the Lord Chancellor is transparent, but that there is necessary ministerial oversight and involvement to ensure proper accountability to Parliament, which is of course sovereign.
	At present, the Lord Chancellor has statutory powers to remove judicial office holders below the High Court on grounds of incapacity or misbehaviour. Those powers will be reformed so that they can be exercised only with the agreement of the Lord Chief Justice. The Bill places all matters of judicial discipline and removal on a transparent statutory footing and provides a structure that reflects a proper balance between the independence of the judiciary and democratic accountability for the judicial system. The current role of Lord Chancellor will be shared with the Lord Chief Justice. No removal or other disciplinary action can be taken by one of them without the agreement of the other. None of those powers will displace the existing role of Parliament in the removal of the most senior members of the judiciary, in those exceptional circumstances.
	The Bill will also permit those who are dissatisfied with the administration of the complaints procedure established by the judicial appointments commission to seek review of the operation of the process by a judicial appointments and conduct ombudsman.
	Part 5 of the Bill takes account of the reform of the office of the Lord Chancellor in Northern Ireland, building on the provisions already made for that jurisdiction. Part 5 makes provision for the removal of judges in Northern Ireland in the period prior to devolution of justice to the Northern Ireland Assembly.
	In Committee, we shall no doubt debate these provisions in much greater detail, but fundamentally, the principles and rationale for the legislation are clear and simple—

John Bercow: rose—

Christopher Leslie: Speaking of which, I give way to the hon. Gentleman.

John Bercow: The Minister has sought to deal with the Bill sequentially, but will he press the rewind button for a moment? I would like to take up the issue of the provision in clause 16 for the transfer, modification or abolition of the functions of the Lord Chancellor by order. I am in a difficulty from which I hope the hon. Gentleman will be able to extricate me. Given that the Lord Chancellor has a visitatorial function—a responsibility for interpreting and acting as arbiter in a number of disputes, notably, for example, in universities and hospitals—can the hon. Gentleman tell me how that role relates to and/or differs from comparable responsibilities of the President of the Council, the Leader of the House? What is the nature of the reform that the Government envisage?

Christopher Leslie: Many of the visitatorial functions of the old office of Lord Chancellor are not appropriate to the new ministerial office. Many of those will revert either to universities or to the other appropriate office holder—the Secretary of State responsible for those particular policy areas. That is one of those matters of detail that I again suggest would be better aired in Committee.

John Bercow: rose—

Christopher Leslie: Just for fun, I will give way again.

John Bercow: I admit that this is a matter of detail. The hon. Gentleman and others may think that I am being pedantic, but I happen to think that the matter is important, and I do not disagree with what he has just said. In saying what he has about the rather anachronistic character of some of the responsibilities, does he accept that it would be a bit of an anachronism for the Leader of the House, notwithstanding his multifaceted talents, to have responsibility for arbitrating on disputes in universities? Surely the right hon. Gentleman's time would be better devoted to other responsibilities.

Christopher Leslie: The hon. Gentleman may well have suggested a worthwhile debate. I agree that my right hon. Friend has multifaceted talents, and I am glad that the hon. Gentleman has recognised that.
	To return to the principles of the Bill, its rationale is clear and simple: a modern footing for the relationship between the Government, the judiciary and Parliament; an end to the potential conflicts of interest between the political and the judicial realm; a restatement and strengthening of judicial independence; better courts administration, with a full-time Cabinet Minister overseeing £3 billion of public expenditure; and clearer responsibilities for the vital functions of a modern democracy.
	Our constitutional history is among the longest and most illustrious anywhere in the world. It has evolved gradually but constantly over the centuries. Change and reform is therefore a core feature of our system of governance, not alien to it. These changes, too, will further enhance and improve our constitution so that it is fit for the 21st century. I commend the Bill to the House.

Patrick Cormack: On a point of order, Mr. Speaker. I apologise for raising this matter, but I wonder whether there is anything that you can do to protect the interests of the House. We have just heard that this is a major constitutional Bill of enormous and far-reaching importance—an historic Bill, whatever one's view of it—yet despite the Minister's assurance, the House will have only three hours on the Floor of the House to debate the most fundamental aspects of the measure. Can you do anything to make representations to those who have brought the Bill before us to ensure that the House—your House, over which you preside—has a proper opportunity to discuss those important matters?

Mr. Speaker: The hon. Gentleman asks me to do something in which the usual channels should be involved. The Whips are obliged to listen to Back Benchers, especially senior ones. I know that the Government have a majority, but we are in danger of pre-empting the decision on the programme motion, which is not for me to do.

Dominic Grieve: I beg to move,
	That this House declines to give the Constitutional Reform Bill a second reading because it creates a costly and unnecessary Supreme Court exercising the same functions as the current Law Lords; is based on the false premise that the separation of powers between the judiciary and legislature requires the physical removal of the Law Lords from Parliament; fails to demonstrate how the proposed Supreme Court would exercise its functions with any greater degree of impartiality, independence and integrity than the Appellate Committee of the House of Lords; will deny Parliament the experience and expertise that the Law Lords bring to debates and legislation; and notwithstanding the benefits of a Judicial Appointments Commission, offers no convincing justification for replacing a system that works well.
	I move the reasoned amendment with considerable regret, because I am by no means averse to the idea of evolutionary constitutional reform, and certainly not in respect of the judiciary and its appointments system, or of the operation of the House of Lords and the role of the Lord Chancellor. Far from it. As the hon. Member for Nottingham, North (Mr. Allen) said, it has always been a subject of legitimate public debate. Constitutions will survive the test of time only if they adapt. I have no difficulty with those arguments, but we cannot get away from the fact that the manner in which constitutional reform of a major kind was introduced was disastrous—disastrous for the reputation of the Government, disastrous in terms of undermining the independence of the judiciary, which it involved at its outset and disastrous in the whole manner of its announcement.
	In early 2003, we were assured by the previous Lord Chancellor that the Government on whose behalf he was speaking had no intention of changing the current systems in respect of the Lord Chancellor and the Supreme Court. In summer 2003, an announcement was made on the back of a Cabinet reshuffle—an announcement of which, it has become apparent, the Lord Chief Justice was informed only a few minutes before it was made. It was obvious that the Cabinet Secretary, who is supposed to steer Ministers, in particular the Prime Minister, away from serious pitfalls, had not been consulted. The announcement envisaged the immediate axing of the office of Lord Chancellor. It was a back-of-the-envelope job and within 24 hours we had the bizarre scene of the person who had announced that, whatever he was, he was not the Lord Chancellor, having to go the royal courts of justice to take the Oath of Allegiance to fulfil precisely that role. Not only was the spectacle unedifying as a piece of history, but it colours my approach to the Government's handling of the matter and the degree of trust that I place in the Government's delivery of their promises on it.

Douglas Hogg: Will my hon. Friend also point out that the affair showed extraordinary ignorance on the part of those advising the Prime Minister, because there were hundreds of references in many statutes to the role of the Lord Chancellor, which had to be dealt with before the office could be abolished?

Dominic Grieve: I agree entirely. There were, I believe, more than 500 such statutory references that could not be expunged by the executive fiat of the Prime Minister, but whether the right hon. Gentleman was badly advised, I do not know. I have a funny feeling that he was not advised at all. I think that he concocted the change in cahoots with the present Lord Chancellor on the back of an envelope—or certainly over a glass of good claret. I cannot imagine what else what else was going on.

Edward Garnier: I am grateful for my hon. Friend's opening remarks. Does he accept that the logic of his amendment and what he has just said is that the next Conservative Government would repeal the Bill if it is on the statute book when we return to office?

Dominic Grieve: The position is clear. We are committed to the preservation of the office of Lord Chancellor in a form in which he is both a lawyer and a Member of the Lords. That is fundamental, and I believe and trust that we would take action to restore the office. As for the supreme court, we must see what the position is when a Conservative Government come to office. [Interruption.] I must tell the Minister that our position, too, is straightforward. If the supreme court has not been set up, I assure my hon. and learned Friend that we do not intend to set it up. It is unnecessary, for reasons that I shall explain.

John Gummer: Will my hon. Friend return to his point about the proposal being made on the back of an envelope? Is it not likely that it was introduced in that peculiar way, given that the creation of both the Office of the Deputy Prime Minister and the Department for Environment, Food and Rural Affairs was worked out on the back of an envelope to satisfy individuals, rather than for the better governance of the nation?

Dominic Grieve: I agree. A number of people were satisfied with the reform of the office of Lord Chancellor. The present Lord Chancellor seemed to be pleased with his promotion. Notoriously, the previous Home Secretary, the right hon. Member for Sheffield, Brightside (Mr. Blunkett), was filmed at the entrance to the Home Office embracing the present Lord Chancellor, who was about to carry out his new duties. The right hon. Member for Sheffield, Brightside was overheard to say sotto voce, "Now at last we will get the judges we want." Another reason why I find it hard to trust the Government on this issue is that, in the initial stages of reform in the period immediately after the announcement of the back-of-the-envelope proposals and the ensuing fiasco and back-tracking, the judiciary, who certainly did not wish to be dragged into the argument—none the less, they were—were under the impression that the proposals as they stood were the most serious threat to judicial independence in their lifetime. That was apparent from their response.
	I accept that, since then, the Government have taken steps to satisfy many of the judiciary's anxieties, but it is extraordinary that a Government committed to human rights and the rule of law should, in the summer of 2003, have introduced a series of proposals that threatened to undermine both. However, I have ceased to be surprised at the way in which they operate, because although they are loud in their rhetoric about trying to improve and modernise, the reality is a constant accretion of centralising control to Ministers—that has been their absolute and consistent hallmark.

Clive Soley: Before we leave the question of what a future Conservative Government, if there is one, would do, will the hon. Gentleman explain something? I am not a lawyer but, as I understand it, if we do not have a supreme court and a clearer separation of powers, it is only a matter of time before someone goes to the European Court of Human Rights and argues that case. Is it the intention of a future Conservative Government to take us out of human rights legislation?

Dominic Grieve: The hon. Gentleman has made a perfectly reasonable point, but the problem that he identified is a fiction. Many of the Law Lords who considered that problem decided that it was most unlikely to arise and I believe that, if such a challenge was mounted in Strasbourg, the margin of appreciation allowed for a country's individual judicial system would enable our arrangements to stand the test without difficulty. The only issue that might have presented problems was the Lord Chancellor sitting as a judge, which is why, as the Minister knows, we have always been consistent in the view that that was a practice that could be ended as part of the evolutionary change. I disagree with the analysis of the hon. Member for Ealing, Acton and Shepherd's Bush (Mr. Soley) of what would have happened, or what would happen—after all, we have not brought these changes about—if we left the Law Lords as they are at present.
	The Minister said that it is wrong that judges should have to exercise forbearance in what they say, but the reality is that judges have to do so at almost every moment, including in private conversations and at dinner parties. I do not think that that made any difference and they succeeded in managing membership of the House of Lords and active participation in it without difficulty. I shall return to that point.

Vera Baird: The hon. Gentleman will appreciate that there is a real academic conflict in respect of what he has said and that there might be something in the assertion of my hon. Friend the Member for Ealing, Acton and Shepherd's Bush (Mr. Soley). There is a respected school of thought that says that having judges in the legislature at all is capable of breaking the convention.

Dominic Grieve: I accept that the hon. and learned Lady makes an arguable point. We continue to have judges in this legislature. We have recorders who sit in the Crown court. That is a point to be borne in mind. Indeed, we have deputy district judges sitting in the House, quite apart from the other place. I do not believe that that presented a problem. I was sufficiently happy, as I shall explain, with the existing system, not to have wished to see it tinkered with.

Edward Garnier: I intervene as a Member, not as a recorder who happens to be a Member.
	Before my hon. Friend allows himself to be too far seduced by the hon. Member for Ealing, Acton and Shepherd's Bush (Mr. Soley) and his arguments, he will remind himself of the European Court of Human Rights case dealing with the Bailiff of Guernsey. He will remember that, while the case led to the change in the arrangements in this country over assistant recorders and so forth, that Court did not criticise the British system of having a Lord Chancellor who happened to be a member of the political class.
	It strikes me that we are getting into this groove because we are different and because it is thought that we should conform with everybody else's constitution. I hope that the Conservative party, above all, will ensure that it sticks up for what is good in this country and not allow the Labour party to wash all over us the slack intellectual guff that it seems to be seduced by.

Dominic Grieve: I agree entirely with my hon. and learned Friend. I want to reassure him. I am proud of our constitution and of the fact that it has stood the test of time, worked well and evolved pragmatically.
	I say to the Minister that I could not give a fig about the separation of powers. It is an 18th-century concept that was put together by a French philosopher who came over to this country and misunderstood the way in which the system worked. Particularly, he was amazed that members of the judiciary, even then, exercised their powers independently and concluded that they were separate. What is of concern to me and to others is that the independence of the judiciary should be preserved. The separation of powers has nothing to do with it. Indeed, it is a concept that, on the whole, we have ignored and I think that we have been right to do so.

Patrick Cormack: My hon. Friend is making a robust and intellectually impeccable case. Is not the natural conclusion of everything that he says that the next Conservative Government would be exceptionally unwise to proceed to a second House that was 80 per cent. elected, which would, in effect, abolish the House of Lords?

Dominic Grieve: I agree that any step by any Government in respect of the constitution of the House of Lords that erodes its independence, its independence of thought and independence of action would be massively undesirable.
	I return to the slightly more restricted area of the judiciary and specifically to the office of Lord Chancellor. The Government proposed its entire abolition. They were then willing to listen to the representations made in the other place on the preservation of the name as the title of the Minister who fulfils the functions, but that is to all intents and purposes a valueless concession. I am interested not in symbols, but in practical reality. The practical reality is that, by a mixture of accident of history and the development of convention, we have succeeded—or had succeeded, until summer 2003—in creating an exceptional institution and one that ensured that, at the very heart of Government and of the operation of the Executive, there was a permanent champion of the independence of the judiciary capable of standing up for its independence and its rights, and it worked.
	It did not matter whether Lord Hailsham rang his bell on the beach—I think it was actually on the podium—when he was a party chairman. It did not matter that Lord Gardiner had been an active member of the Labour party prior to his appointment. When somebody was appointed Lord Chancellor, went to the royal courts of justice and took the judicial oath, he was effectively transformed and became in his attitude and outlook quite different, commanding respect to such an extent that every time one asks the question, which the Minister answered earlier, whether actions by previous Lord Chancellors over the past 25 to 30 years in the appointment of the judiciary or their dealings with them have been faulted, the answer comes back entirely in the negative. To take that institution and smash it to pieces, which is what the Government proposed to do at the outset, without providing for an adequate replacement—as I shall explain in a moment, the replacement is in many of its aspects seriously flawed—strikes me as extraordinary.

Douglas Hogg: My hon. Friend has been referring to the office of Lord Chancellor. He made some very kind remarks about my right hon. Friend, my father. Does he accept that one of the reasons why the Lord Chancellors were always effective in the role that they performed was, first, because being in the House of Lords, they could not look to preferment in this place and therefore were not the subject of patronage in that sense, and secondly, because as a general rule they had come to the end of their political or their legal career and did not give two hoots?

Dominic Grieve: My right hon. and learned Friend is right. Having taken the judges' oath, Lord Chancellors had nowhere else to go. There was no further appointment in Government that they could fulfil that would be of an active political kind, or, short of sitting as a Member of the Committee in the House of Lords, any other function in their profession as lawyer to which they could return. I am convinced that it was a powerful and effective tool in promoting their independent viewpoint. Of course it was always possible that they could be sacked by the Prime Minister and replaced, but their replacement underwent exactly the same metamorphosis when he went down the road to the royal courts of justice to take the judicial oath. This is not just an abstract matter. It worked in practice, as the Minister acknowledged.
	When we consider the office of Lord Chancellor and whether it is worth preserving, I point out to the Minister, first, that if it worked well but there were flaws in it—the particular flaw identified by the Minister and some others is that the Lord Chancellor sat actively as a judge, as opposed to just appointing judges—that is a matter that can be remedied. Secondly, as I made clear to the Minister at the outset, if the needs of transparency merit a judicial appointments commission, there was no reason why the Government could not go ahead and create that commission while preserving the office of Lord Chancellor, sitting in the House of Lords, taking an oath of office, not sitting as a judge and remaining legally qualified.

John Bercow: Whether my hon. Friend noticed it or not, the Under-Secretary of State for Constitutional Affairs, the hon. the Member for Shipley (Mr. Leslie) looked genuinely quizzical and even disbelieving at the idea that someone who had once been a party politician and became Lord Chancellor could change in attitude and outlook according to the new post he occupied. Does my hon. Friend agree that it is curious that the Minister should be so disbelieving, for there is an obvious precedent much closer to home? I refer to the fact that in our parliamentary process someone who has long been a party politician subsequently becomes Speaker of the House.

Dominic Grieve: I agree entirely with my hon. Friend.
	It is a curious feature of this Government that they distrust and dislike convention. Convention is a system by which people behave in particular ways or do particular things, not because any rule is laid down that they should do it, but because they know that it is expected of them and believe that they would face massive public disapproval, and, quite apart from anything else, a lowering of their self-esteem, if they did not. I happen to believe that that is one of the really remarkable things that we have in this country. It is one of the things that make me proud of being British. I compare that with the situation in other countries, including one with which I am closely linked, where I do not think that such a system prevails. Therefore, it is something to be nurtured, enhanced and celebrated, yet the Government have shown themselves consistently incapable of doing that. We have an example of that today, because it is the convention that a Bill of this importance should be taken on the Floor of the House, but the Government, in so far as they are concerned with convention, could not care less, so we will not do that.

Gwyneth Dunwoody: This is an important point. Will the hon. Gentleman therefore tell me why the Conservative party accepted the fact that a major constitutional Bill of this kind, which is very important, should be dealt with in the way that has been proposed by Her Majesty's Government? They must have had talks with the Ministers concerned.

Dominic Grieve: I can reassure the hon. Lady that we have not. We shall vote against the programme motion and if in the course of this afternoon I can persuade the Government by my arguments to revise their proposals, I assure her that I shall be delighted. The entire Bill should be taken on the Floor of the House. It would need about four days, no more. It could be done simply and straightforwardly, and that would allow for the maximum participation by right hon. and hon. Members .

John Gummer: The hon. Member for Crewe and Nantwich (Mrs. Dunwoody) is herself an example of the importance of convention. The attempt to remove her as Chairman of a Select Committee was clearly unacceptable. The Government behaved perfectly legally, but in a way that all convention spoke against. Is it not true that convention is a civilised way of running a Government and a Parliament, and do we not get rid of it at our cost?

Dominic Grieve: I agree entirely with my right hon. Friend. I commend to the Minister the words of a distinguished Labour Minister, Herbert Morrison, who said:
	"You cannot play about with the British Constitution in a Committee Upstairs, to put it colloquially."

Gwyneth Dunwoody: On a point of order, Mr. Deputy Speaker. I apologise for interrupting, but earlier Mr. Speaker said that the programming of the Bill was a matter for arrangement between the two Front-Bench teams. Am I to take it that that negotiation has not taken place?

Mr. Deputy Speaker: That is not a point of order for the Chair. I have no knowledge of what has gone on between the usual channels.

Dominic Grieve: I can tell the hon. Lady that the negotiations failed, because our proposal that the matter should be taken on the Floor of the House in the ordinary way was rejected by the Government, who have tabled a motion, on which we shall vote after Second Reading, insisting that large chunks of the Bill should be taken Upstairs. It is of more than abstract significance. It is extraordinary. The Minister spoke earlier about the importance of the new judicial appointments mechanisms in terms of the point at which the Secretary of State for Constitutional Affairs/Lord Chancellor would have a choice to accept or reject a nomination. The hon. Lady may agree that that is an important point. It is in clauses 64 and 71, but those clauses will not be considered on the Floor but Upstairs. Even now, the Minister has time to change his mind and ensure that those clauses are considered on the Floor.

David Heath: I will advise my hon. Friends to vote against the programme motion this evening and was not consulted on whether any or all of the Bill should be taken Upstairs.

Dominic Grieve: I am sorry to hear that the hon. Gentleman was not consulted, because he should have been. I understand that a discussion took place with Government representatives and that no meeting of minds occurred. The sensible course of action is for the entirety of the Bill to be considered on the Floor.

Edward Garnier: The Government's attitude to the question is exposed by motion 3 on the Order Paper, which states:
	"CONSTITUTIONAL REFORM BILL [LORDS] (PROGRAMME) [No debate]".
	"No debate" is in heavy type. The Government do not like debate and being held to account. They want to force us to take on everything that they push forward, irrespective of what the public and the House of Commons think.

Dominic Grieve: I agree with my hon. and learned Friend. It is regrettable that we cannot debate the programme motion and, although the situation is still unsatisfactory, that is why we are seeking to touch on the matter here on Second Reading.
	Moving on from the question of the Lord Chancellor, if the Minister is prepared to accept the amendments, which were tabled and voted on in the other place, to the effect that the Lord Chancellor should remain in the House of Lords and be a lawyer, a meeting of minds will occur between Conservative Members and the Government on that part of the Bill. The Minister may have great difficulty getting the Bill through Parliament unless that concession is made. The Bill started in the House of Lords, which is a good reason why the House of Lords should have some say on how it is finished.
	I hope that we can persuade the Minister to make a small but significant change in Committee to ensure that the Lord Chancellor/Secretary of State for Constitutional Affairs is not a politician on the make and not subject to the inevitable political pressures in respect of the judiciary. Such political pressures are generated, often understandably, in this House and they are thoroughly undesirable if they influence the decisions of individual judges. That change would ensure that the independence of the judiciary is maintained. The Minister may argue that the concordat is sufficient, but the concordat is valueless unless good will exists. The best way in which to generate good will is to have the highest standards, which would come from the preservation of a large part of the substance of the office of Lord Chancellor as well as the name.

Vera Baird: Is the hon. Gentleman aware that the qualification in clause 3 that the Lord Chancellor must be a lawyer, which is likely to be met most of the time, also requires that person to be a High Court advocate under the Courts and Legal Services Act 1990? I may be wrong, but that seems to be the requirement. That would exclude, for instance, a senior solicitor who has not bothered to obtain that qualification because they are not engaged in that kind of practice. Is that not an undue restriction on the available pool of post holders?

Dominic Grieve: I am broadly content with the legal qualification in clause 3. If it concerns the hon. and learned Lady, it is precisely the sort of area that can and should be examined in Committee, but it is not the main issue.
	In a moment, I shall discuss how the judicial appointments commission will function, but the person who fulfils the ministerial office—I shall be interested to hear the Minister's view in Committee—must take a close interest in the judiciary and its career structures, who is doing well, how the judiciary operates on a day-to-day basis and any problems that the judiciary may have. As the Minister will confirm, one of the key roles of the Lord Chancellor that remains in the Bill is that of initiating the process by which the judicial appointments commission becomes operational, as well as having an ultimate power of veto over certain appointments.

Douglas Hogg: Does my hon. Friend agree that one of the chief functions of our Lord Chancellor is to constitute a source of advice and influence that can be set against the Home Secretary? As that is usually to do with constitutional or criminal law, is it not rather important that the Lord Chancellor should have some professional expertise in that field?

Dominic Grieve: My right hon. and learned Friend pre-empts my next words. He is of course right.
	As I said at the outset, having a judge representing the judiciary in the heart of Government is among the principal important functions that the Lord Chancellor has fulfilled. After the events of summer 2003, the judiciary expressed great anxiety about the political pressures on it that were building up. The downgrading, in effect, of the office of Lord Chancellor into that of a minor Minister was beginning to have an impact on the judiciary's sense of independence. We saw that when the then Home Secretary told the House that magistrates should go to public meetings to be told how to perform their functions, and when, in extraordinary fashion, he started to usurp the power relating to how the Crown Prosecution Service should operate. As my right hon. and learned Friend may remember, that was the subject of a statement or urgent question in this House. The actions of the Home Office gave rise to great concern about whether judicial independence could and would be maintained. These are not just abstract problems.
	The Lord Chancellor is not symbolic and his role should be reinforced. I am convinced that if the Government see sense on this, they will have no cause to regret it. I cannot see any problem for them in keeping the Lord Chancellor in a status that means that further preferment will not be open to him. That is advantageous—but substituting a Minister on the make is an enormous mistake.

Christopher Leslie: The hon. Gentleman disparages all Ministers who are neither lawyers of large significance nor peers as "Ministers on the make." Can he justify having this legal qualification for the new ministerial post by explaining why he, for instance, would be superior to, say, his colleague the right hon. Member for Haltemprice and Howden (David Davis), who does not have such a qualification?

Dominic Grieve: The Minister completely misunderstands my point. There are two separate issues. First, the office holder should be in the House of Lords and should take an oath that disqualifies him from further participation in Government thereafter—that is valuable and has nothing to do with his legal qualifications. Secondly, he should be legally qualified because his role is intimately involved in the selection of the judiciary and the knowledge of how the judicial system works. Thirdly, as my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) said, he should provide a lawyer's input into the issues of judicial independence that he is there to maintain. For all those reasons, I would keep the office of Lord Chancellor as provided for by the Bill as amended in the other place.
	I told the Minister at the outset that we support the principle that a judicial appointments commission should be set up, so many of the comments that I wish to make can be reserved for Committee. However, it is worth bearing in mind one or two key points. If the commission is to work, it must have sufficient flexibility to be able to respond rapidly to any given situation. For example, it is well known that at the end of the Pinochet case, the then Lord Chancellor realised that the House of Lords faced difficulties. He therefore carried out a musical chairs reshuffle, which worked superbly. He appointed a new senior Law Lord and a new Master of the Rolls and the consequences were widely appreciated. I have a concern—which I hope the Under-Secretary will note, even if he does not respond to it later in the debate—that the commission should have sufficient flexibility to act, if necessary, with similar finesse. That is important, because when one examines the bureaucratic structures that are being set up there must an anxiety that, however worthy the aims of the judicial appointments commission, it will not have the ability and flexibility to move in that fashion.
	Earlier, my hon. and learned Friend the Member for Harborough (Mr. Garnier) mentioned the appointment of the new president of the family division. I make no criticism of the appointment, which appears to be unusual and, we hope, creative. However, I am bound to say that it was possible because, for better or worse, of the ability to make decisions in a highly flexible manner. I therefore need reassurance that appointments by a judicial appointments commission can have similar flexibility. I hope that the Under-Secretary will accept that as a seriously made and well-intentioned point. There is no point in our ending up with a rather ponderous organisation that fails to deliver the necessary flexibility to ensure that the higher echelons of the judiciary can be so moved around that people are happy in their jobs, that it functions well and that there is public confidence in it.

Edward Garnier: I am grateful to my hon. Friend for giving way because he allows me to clarify a point that I made in an intervention. I believe that Lord Justice Potter will make an extremely good president of the family division and I have no criticism of his judicial qualities. However, I am worried about the illogic of the Government's position. On the one hand, they advocate modernisation of the judicial appointments system, yet on the other they appoint a judge—as it happens, an excellent judge—by old-fashioned means. I heard the Under-Secretary's comments, but it is deeply unconvincing of him to try to advance one argument after the Bill is enacted, yet rely on the much-criticised system that pertains before enactment.

Dominic Grieve: My hon. and learned Friend is right that there are strange standards in the Under-Secretary's approach. However, in fairness to him we are considering one argument that shows the merit of a judicial appointments commission and why I support it. However, we need to consider flexibility carefully.
	There is another concern. The Under-Secretary said that any appointment would be made on merit. Indeed, it must be on merit. I am not worried about the desire to expand the pool of talent—many people hide their light under a bushel and such talented individuals should be brought forward and considered. However, there is a narrow dividing line between that and engaging in a form of engineering that rapidly leads the public to conclude that appointment on merit is not happening. We need to consider that carefully because although I am as keen as the Under-Secretary to ensure that those with merit who are qualified are appointed from all sections of society, merit must nevertheless be central and any attempt to dilute it must be examined with great caution.

Vera Baird: I was pleased to hear the hon. Gentleman set out the importance of merit and his appreciation, which I am sure was implicit, that the wider the pool, the better the calibre of candidate. Is he ready to confirm that the current system is not the best because, historically, positive discrimination has taken place in favour of white men from Oxbridge colleges and public schools? That is unfair and does not constitute promotion on merit alone.

Dominic Grieve: I hesitate to join the hon. and learned Lady in that criticism. I simply point out that the Under-Secretary appears to take the view that every effort has been made in the current system to ensure appointment on merit from the widest possible pool of those qualified. I have not heard him say that that is not happening. Indeed, it would be surprising if it were not, because that would constitute a criticism of either this Lord Chancellor or his predecessor. Indeed, going back to the Conservative Lord Chancellor before them, I seem to recollect some extremely creative appointments being made, and his not being criticised for that.

Alan Beith: Does the hon. Gentleman recognise that it is a merit not only to have the highest levels of judicial ability but to add to the bench greater representativeness than it had before?

Dominic Grieve: I certainly agree with the right hon. Gentleman that we should not be doing our job properly if those who were capable of serving were being denied access to the higher ranks of the judiciary, for whatever reason. To that extent, I entirely agree with him that if the system can be improved so that there are fewer occasions on which anyone makes a complaint, that would be a good thing. Appointment on merit is the key criterion that must be observed, because ultimately judges are there to decide issues not because of their background, their race or their faith. The wonderful thing about this country is that that is exactly what has been happening for many years and we must ensure that it is preserved.
	If we are to encourage people to go on to the higher benches of the judiciary, we must face the fact that, at the moment, many of them have to be asked to do so. The Minister will acknowledge that the current composition of the Court of Appeal simply would not be as it is if people had not been prodded—at the moment by the Lord Chancellor and sometimes the Lord Chief Justice—into accepting appointments that often involve a substantial diminution in their earnings. That is something that we shall need to consider carefully, because if the appointment system is simply going to involve filling in a form and answering an advertisement, I have a nasty feeling that many people who have the requisite talent and merit will be excluded from applying, either through diffidence or some other reason. This is another area of the existing flexibility that we must not lose through the mechanism of setting up a judicial appointments commission. We can look at that in detail in Committee.

Douglas Hogg: Will my hon. Friend note that a number of hon. Members, myself included, have considerable concerns about the procedure whereby complaints can be made to the ombudsman regarding the methods of selection used by the appointments board? This matter must be carefully scrutinised in Committee.

Dominic Grieve: I agree with my right hon. and learned Friend. Indeed, I apologise for not having touched on that matter. I was conscious of the passage of time and wished to allow adequate time for Back-Bench contributions. He is right—that is another area of detail that we need to examine.
	The principle of the judicial appointments commission appeals to me and I am sure that it will lead to improvements, but the detail is important, and the fact that we support the principle should not, and will not, mean that we ignore the detailed problems associated with it. I have read the Bill and looked at the debates in the other place, and it has become apparent that there are complexities involved. Unless we get them right, we could end up with an appointments system that does no better than the present one. Indeed, it could contain flaws that the present one does not.
	The Minister tells us that the supreme court will cost £30 million to set up. I suspect that that is a highly conservative figure. If we have understood him correctly, the court is heading straight into the Middlesex Guildhall, which is the one place that the Law Lords who support the idea of a supreme court do not want to go, because it would send out all the wrong signals about what they are and how they operate—[Interruption.] I give way to the Minister.

Christopher Leslie: I was expressing slight surprise that the hon. Gentleman thinks that it is the wrong place in which to have a supreme court. Parliament square represents pretty much the apex of our constitution, so perhaps he could elaborate on why it is the wrong preferred choice.

Dominic Grieve: The valid points that were made were that the building is an old guild hall. A number of its rooms have limitations in the way in which they can be adapted. They are not suitable for the sitting of a supreme court because the judges want to maintain the informal atmosphere that they currently enjoy in a Committee Room in the House of Lords. Most of the other accommodation is similarly unsuitable. Those points were made with some force not by me, but by Lord Bingham and it seems that the Government intend to ignore them. I find it a little surprising that as the new supreme court is supposed to send out a powerful signal of novelty—I mean that in the best sense of a new beginning—it is proposed to house it in a building that is not exactly a symbol of the supremacy of law.
	The irony, as Lord Nicholls of Birkenhead made clear in his speech, is that many Law Lords find the setting in which they currently do their work extremely congenial because of both the accommodation and the signal that it sends out of how they conduct their business. It may be a bit cramped, but it is astonishingly cheap with £168,000 a year of overheads, compared with the Government's estimate of £8.8 million a year on overheads for the new supreme court. I shall need a lot of convincing from the Minister that the new idea has any merit.

David Heathcoat-Amory: Has my hon. Friend attempted to understand the notes on clauses about costs? If he has tried to read them, does he understand, as I do, that the extra capital and running costs will be reflected in higher court fees charged to litigants by the judicial system? Does that not contradict the Government's expressed wish to increase access to the justice system through lower costs?

Dominic Grieve: My right hon. Friend is right. Not only is that contradictory, but it seriously undermines a central activity of government. The original compact between the state and the citizen—the principle by which we become citizens of a state—is that we have access to justice. It is an extraordinary state of affairs. I do not want to widen the debate too much this afternoon, but at present access to justice is becoming harder and harder for more and more people because of increasing restrictions on legal aid. Court costs are another mechanism by which access to justice may be seriously hindered and it worries me that the Government are approaching the matter in what can only be described as a commercial way. Access to justice is not a commercial matter.

Douglas Hogg: On the point about rising court fees, they have been raised substantially at county court level and in the High Court, and are a considerable disincentive to litigation.

Dominic Grieve: My right hon. and learned Friend is correct. It is a matter of anxiety and has been worrying me because, during the past month, I have received letters from solicitors and litigants indicating their level of concern. An extraordinary part of the Government's scheme is their attitude to the privatisation of justice. One inevitable consequence is that more and more matters will be resolved in other forums by arbitration and so on and, inevitably in such settings, it is the weakest and those with most need of access to justice who will be denied the justice that is an essential part of the coronation oath that underpins one of the reasons why this country and state exist.

Christopher Leslie: It is rich of the hon. Gentleman to lecture the House about access to justice on the very day that his colleague the shadow Chancellor proposed axing hundreds of millions of pounds from the legal aid budget. How on earth can the hon. Gentleman square his comments with that sort of removal of access to justice?

Dominic Grieve: The Minister is completely mistaken. The proposals are about the number of people in the bloated office that the Lord Chancellor is running; they have nothing whatever to do with cuts in legal aid. The Minister's comment is typical of the misrepresentation that comes from the Government.

Christopher Leslie: I think I very much understand the shadow Chancellor's proposals, which are to start closing down law centres, withdrawing support for citizens advice bureaux and scrapping the community legal service partnerships. How on earth can the hon. Gentleman get away with lecturing the House about how his party is, supposedly, the defender of access to justice?

Dominic Grieve: The Minister has clearly not read the paper. If he had done so he would have seen that the changes we seek concern particularly what we regard as the waste of money by the Lord Chancellor's Department and the Secretary of State for Constitutional Affairs, in spending money that ought to be spent on legal aid on a series of social projects up and down the country that are an ersatz replacement for the lack of availability of legal aid to individuals.

Edward Garnier: My hon. Friend may recall the Access to Justice Bill that went through the House between 1998 and 1999, although he was not a member of its Standing Committee. It was a cruelly named Bill—it should have been the denial of access to justice Bill. The Government ripped up legal aid in any accepted and understandable form, denying huge numbers of the sick, the elderly and the poor access to justice. The Government said that they would rely on charities, citizens advice bureaux and law centres, but of course they cut funding to all those institutions. Not only did they deny public legal aid, but they denied any other route that was available to the poor, the sick and the elderly. The Minister then has the cheek to criticise my hon. Friend for advancing the Conservative policies that he has just been pronouncing.

Dominic Grieve: I remember the Bill very well and I agree with my hon. and learned Friend that the Government's comments ring particularly hollow. When they came into office in 1997, 60 per cent. of the population were eligible for legal aid; the figure is now 5 per cent. That is the measure of the change that the Government have presided over. The substitutes they have offered are, in many cases, not adequate.

Christopher Leslie: I want to be clear about what the hon. Gentleman is saying. Is he giving a commitment that a Conservative Government would not scrap any aspect of the community legal services partnership or support for citizens advice bureaux, legal aid work or law centre work? Is he giving that commitment?

Dominic Grieve: rose—

Mr. Deputy Speaker: Order. We are starting to stray away from Second Reading. The hon. Gentleman may respond to that comment, but we ought to concentrate our minds on Second Reading.

Dominic Grieve: I assure the Minister that under an incoming Conservative Government access to justice, including legal aid for those who require it, will be better, better managed and more extensive than this Government provide at present.

David Kidney: Will the hon. Gentleman give way?

Dominic Grieve: No, I really must make some progress.
	The Government's argument is that a supreme court must be set up because the position of the Law Lords is so anomalous at present, yet in fact it has unique characteristics that are beneficial to the way in which we do governmental business in this country. It allows the Law Lords to participate in debate in the other place and they have shown themselves—as I said to the Minister and he acknowledged at the outset—perfectly capable of choosing their words with sufficient care and choosing the debates in which they intervene sufficiently carefully to ensure that no criticism attaches to them. That is what the Minister wants to get rid of, but it has real value as a constant reminder in the legislature of the view of the judiciary. The oddity is that, as far as I am aware, instead of the Law Lords being able to express themselves in the House of Lords, the replacement position will be that the Lord Chief Justice will have to do it all for them—and not only there, but in the forum of press releases, for the fulfilment of which role he has already been allocated a press officer. I find that rather odd. We are shutting down what is a very controlled and ultimately beneficial way to ventilate issues of public concern, yet the Government acknowledge that, far from cloistering away the judiciary, they must make alternative arrangements.

Douglas Hogg: Does my hon. Friend agree with the proposition that, probably, in neither this Chamber nor the other place is there any person who has a wider knowledge of current legal practice than the existing Law Lords because they have legal expertise right across the spectrum of current legal problems?

Dominic Grieve: Yes, indeed. Of course, the Law Lords are helped in their work by the fact that they are present in the House of Lords, so they are intimately aware of current trends in the country—[Interruption.] Oh yes, and they have an opportunity to discuss matters informally with others. That is valuable, and I regret that the Government want to get rid of it for such a costly white elephant that, otherwise, will deliver exactly the same service. The Minister is asking us to vote for a Bill that will vastly increase the cost of an institution that will otherwise operate in exactly the same way, save for the removal of the Law Lords' rights to speak and vote, even though they have never been criticised for the way that they exercise them.

Vera Baird: The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) was incorrect to suggest that the Law Lords have a broad sweep of legal experience. There has not been a criminal lawyer in the House of Lords for quite a long time, as I am sure the hon. Gentleman is aware. Is not what he is saying inconsistent with the fact that half of the current Law Lords first, announced themselves, through Lord Bingham, to be uncomfortable with their current role in the Lords, and secondly, declined to speak at all, going beyond even the self-denying ordinance of 2000 because they simply think it inappropriate to mix their two roles?

Dominic Grieve: The final point reflects well on the Law Lords. The Minister wants to depoliticise the judiciary, but I am afraid that the debate conducted since the summer of 2003 has had the effect of pulling those in the judiciary—much against their will, I suspect—into an arena where they have had to express their views, and they have succeeded in doing so moderately and sensibly. I fully acknowledge that there are differences of view among the Law Lords about the best way to continue, although it is remarkable, given the Government's enthusiasm for this project, that about 50 per cent. of the Law Lords would very much like the Government to drop it. Clearly, there are mixed views and, ultimately, it is for Parliament to decide, but I cannot go back, face my constituents and tell them that the Government are setting up a very expensive institution that will deliver virtually the same service but with some considerable downsides.

Edward Garnier: Is not the point that the hon. and learned Lady made a moment ago not overtaken by the fact that most, if not all, of the peers that the Prime Minister has appointed to the House of Lords who take the Labour Whip do not appear, speak or vote there? Surely, as they were appointed to do a political job, it is worrying that they simply fail to do it.

Dominic Grieve: My hon. and learned Friend is correct—and he reminds me of the first part of the hon. and learned Lady's question, which I did not answer. Of course, the lack of a suitable criminal judge among the Law Lords is perfectly curable under the existing system, especially as we would be willing to have a new system for the appointment of Law Lords if the Government so wished. That would tie in precisely with our views on the judicial appointments commission generally, although I accept that a separate body would operate. We have no difficulty with that.
	We have indicated by our reasoned amendment that we consider that this Bill is not worthy of support in its present form. I heard the Minister's comments about the Lord Chancellor and what the Minister intends to do with the Lords amendments in Committee, and that reinforces my view that the sensible thing to do is to vote for the reasoned amendment.
	When the Bill comes to Committee, we will do our best to improve it. I again ask the Government to reconsider, even at this stage, their position on which parts of the Bill are taken on the Floor of the House. If the Government want and are prepared to listen, they could, notwithstanding our reservations, still end up with a Bill that will command widespread approval and stand the test of time. However, the way that the Minister and the Government are going at the moment does not give me confidence that that will happen. The truth is that the Government will have difficulty in the other place when the Bill returns there, and they deserve that. It is a pretty fitting epitaph on the way that they have handled this matter.

Ross Cranston: I declare my interest as a lawyer and part-time judge. I see one other Member in the Chamber who sits as a recorder.
	I want to start with the important principles that are set out in clauses 1 and 4, which deal with the rule of law and judicial independence. It is vital that we focus on principle so as to build a system in accordance with principle. Other important values include equality before the law and access to justice, which has already been mentioned in the debate. There is an issue about whether the clauses would be justiciable, but the fact that they are in the Bill and will therefore be part of the Act is not just symbolic; the clauses are cardinal in our system.
	How do we define the principles of rule of law and judicial independence? We can do so negatively. We can look, for example, at Zimbabwe. The Bar Council and other Bars around the world recently published a report demonstrating how there is no longer the rule of law in Zimbabwe. Mugabe has said:
	"The courts can do whatever they want, but no judicial decision will stand in our way".
	The report sets out how the independence of the judiciary and the rule of law have been corrupted. Judges who have handed down decisions adverse to the ruling party have been arrested, and up to 10 judges have left and hacks have been appointed in their place.
	More positively, we have clear definitions in our law. On the rule of law, as lawyers we tend to go back to what Dicey said—that the rule of law means that no person is punishable except for a breach of the law established in the ordinary manner before the ordinary courts of the land. That contrasts with Zimbabwe, where there is arbitrary power and wide discretionary authority. Secondly, no person is above the law—the principle of equality before the law. Thirdly, the general principles of the constitution are the result of judicial decisions determining the rights of private persons.
	In modern language, the rule of law means that the system has to accord with certain formal criteria. The law has to be promulgated to the public; it has to be prospective and not retrospective; it has to be possible to comply with its provisions; it has to be clear, coherent and stable; and the persons who make and administer it should be accountable for the way in which they administer it. One aspect of the rule of law these days is also said to be judicial independence.
	As the criteria tend to be formal, some have said that we must also take account of substantive principles. Modern accounts of the rule of law thus include not only formal criteria, but the content of the rules themselves and the nature of the system. When the World Bank recommends new judicial systems to countries, it talks about the rule of law and tells them that they need democratic, open and transparent systems in which several political parties can contest elections. Additionally, public officials must be aware of the limits of their powers and act accordingly.
	Judicial independence is mentioned in clause 4. At a basic level, that simply means in some countries that one should be able to buy goods and services, but not judges. The hon. Member for Beaconsfield (Mr. Grieve) mentioned the separation of powers, and I agree with him that Montesquieu got it wrong. It was interesting that he was concerned about the separation of powers because he did not want Executive and judicial power to be coupled to oppress citizens. Even in the United States, the separation of powers does not exist in a pure form because, for example, the Chief Justice of the Supreme Court would have presided over an impeachment trial of President Clinton. Bagehot was right—we have a fusion of powers. The fact that I sit as a recorder and a Member of Parliament shows that this country does not have a strict separation of powers.
	None the less, the notion of judicial independence has force. That independence has individual and institutional aspects. The individual aspect is mentioned in clause 4(5), which provides that the Government should not seek to influence the specific decisions of judges. That is absolutely right because courts must be protected from actual or apparent interference by the Executive—there should be no back-door influence. Lord Mackay, a former Lord Chancellor, was right to say that the independence of the judiciary denotes not only independence from the Executive, but the independence of one judge from other judges. Clause 4(5) reflects the international consensus on the meaning of the independence of the judiciary that is set out in international instruments such as those promulgated by the International Bar Association and the United Nations.
	There is a question about whether independence includes the concept of impartiality. Article 6 of the European convention on human rights uses the words "independent" and "impartial". Although some people have suggested that they are separate principles, I prefer to regard impartiality as an aspect of independence. Impartiality means of course not only that judges must not have personal biases or prejudices, but that they must exclude considerations that are not relevant.
	A judge must mediate in disputes between citizen and citizen, and the citizen and the state.The institutional aspect of independence is recognised in clause 4(6). It says that a Minister or the Lord Chancellor
	"must have regard to . . . the need for the judiciary to have the support necessary to enable them to exercise their functions."
	Such support is absent in Zimbabwe because some of its judges have no facilities—several reports suggest that they sit in rooms without electric lights. Governments have an obligation to provide the administrative and financial support that is necessary for the judiciary to do its work.
	An independent judiciary does not mean that judges come in with a blank sheet of paper, which is especially important when we consider widening the pool and increasing diversity in the judiciary. We want judges to have varied experience and a range of expertise. They must, of course, act in accordance with law and, according to the judicial oath, without fear, favour, affection or ill will, but that does not mean that they come without any views at all. In fact, it could be argued that the wider the range of experience that judges have when they come to the job, the better.
	Judicial independence does not mean that judges are not accountable. The most important way in which they are accountable is that they have to give reasoned decisions, which are available to the parties and the general public. Judgments can be criticised, which is an important aspect of accountability. These days, judges have to be aware of the importance of acting efficiently; time is an important resource. Returning to the principle of access to justice, which I mentioned earlier, the fact that disproportionate resources are given to a few cases means that many outside the system do not get access to justice. Judges also have to be accountable if they are rude to litigants or counsel.
	Independence does not mean that judges can decide what they want. They have to act in accordance with the law. Lord Scarman, one of the most prominent Law Lords of the 20th century, who recently died, said that it is not just a matter of deciding what is right; judges have to act in accordance with statute and the common law. If neither statute nor common law gives a clear answer, it is possible to reason by analogy. One cannot simply decide issues without any guidance from law whatsoever.

Edward Garnier: The hon. and learned Gentleman is giving a very interesting talk. I wonder how far what he is describing of the current state of the judiciary and its independence will be changed, positively or adversely, by the Bill.

Ross Cranston: It seems to me that the Bill will provide a firm underpinning, especially in the principles set out at its very beginning, for the standing of our judiciary. I will come on to that in a moment, and I will acknowledge that the standing of our judges is unrivalled, both in their merit and in the quality of their decision making.
	I have said in earlier debates that there has to be mutual respect between institutions. Judicial independence does not mean that judges can completely neglect what Parliament, for example, says. Parliament, of course, has to respect judges' decisions, and we have rules about what we can say about judicial decisions and how we can criticise judges. Judges have to respect legislation, and there is no criticism of the position at present. In 2003, Mr. Rusbridger of The Guardian brought a case under the Treason Felony Act 1848, arguing that if he advocated republicanism he might be in breach of the Act. The House of Lords said that it was not for it to say that the Act was no longer extant.
	There is also an obligation on judges to make decisions in accordance with law, even controversial law, and to respect institutional expertise. The recent case law on the Human Rights Act 1998 is very interesting. Judges have developed a notion of judicial deference in relation to some decision making by the Executive, especially when moving away from article 6 on purely judicial functions to some of the other articles, saying that they have to respect the Executive and Parliament. In the recent Belmarsh case, Lord Bingham said in relation to the notion of whether there was a public emergency to satisfy article 15 that great weight had to be given to the judgment of the Home Secretary, his colleagues and Parliament, because they were called on to exercise a pre-eminently political judgment.
	Other aspects of the independence of the judiciary came up in debate in the other place. Should judges be appointed to inquiries, for example? I do not take any strong view on that. Recently, the Lord Chief Justice came to an agreement with the Lord Chancellor on how judges should be appointed to inquiries, so as to ensure that the standing of the judiciary is not undermined.
	Once we have the principles right, we can move on to discuss in a more informed way some of the Bill's specific provisions. Let me come first to the supreme court. I confess that, initially, I had some misgivings about its creation. As I have said, the House of Lords is highly respected in its judicial capacity. No one could suggest that it has not been independent, even though those of their lordships acting in a judicial capacity have been Members of the House of Lords as a legislative body. If there were concerns, they could have been dealt with by, for example, the Lord Chancellor not presiding over the Judicial Committee or by the Law Lords not participating in debates in the House in its legislative capacity.
	Having listened to the debates and having heard evidence given to the Constitutional Affairs Committee, I have been persuaded by what the Lord Chancellor has said, as I have by the comments of Lord Bingham and Lord Woolf. The creation of a supreme court, as Lord Steyn put it in a lecture a couple of years ago, is a "badge of judicial independence". The institutional separation that the supreme court represents minimises the risk of any public perception that judicial independence is compromised. Like the hon. Member for Beaconsfield, I do not give great credence to the article 6 argument. Although that argument might ultimately have been lost, I do not think that we should have regarded it as especially persuasive. However, in terms of the basic principles inherent in our common law system—the rule of law and the independence of the judiciary—a supreme court is an eminently sensible idea.
	Of course, even if we get that far, that is only the start of the debate. What sort of body are we talking about? We are not talking about a constitutional court. We are not talking about something like the Bundesverfassungsgericht, the German federal constitutional court. The history and institutional arrangements there are quite different; there is a written constitution and a federal system. Similarly, in the United States, there is a mainly constitutional court. With more devolution and human rights cases coming up, the House of Lords or the new supreme court will deal with more constitutional issues. None the less we are not establishing a purely constitutional court, which would be concerned only with constitutional issues. Our tradition has been that constitutional issues are decided by the ordinary courts, which also decide matters of common law and statutory interpretation. It is absolutely right that that continue to be so.
	There is an issue about whether we have a UK court. We now have a clear statement that we indeed have a United Kingdom court. As I understand it, the decisions of the court on cases from England, for example, will not be binding in the other jurisdictions—in Scotland or Northern Ireland. Of course, their persuasive force will be great—I need only remind the lawyers present of the important Scottish case of Donoghue v. Stevenson, which was accepted as binding in all jurisdictions.
	Resources have been raised as an issue. We members of the Constitutional Affairs Committee were impressed by the system that governs the High Court of Australia—not only the resources available to the court, but the control that the court itself has over the allocation of resources. The supreme court must have a building appropriate to its status. Although it would be an inconvenience for the hon. and learned Member for Harborough (Mr. Garnier) and for me to be unable to sit there as recorders, it seems to me that, when refurbished, a building on Parliament square would be most appropriate to a supreme court.
	Hon. Members have spoken about fees. I am not especially concerned about fees in a supreme court. The legal costs in most of the cases that go to such a court are so great that—unless someone has taken the case pro bono—the fees are infinitesimal. None the less, there is an issue about the principle of full cost recovery, which has not been debated by the House since it was introduced in the early 90s, and it would be appropriate to return to the subject at some stage.
	The supreme court will not sit en banc. That is partly because judges, in the past, also had to sit in the Privy Council, and partly because there was a separate panel to hear leave applications. I have no difficulty with that continuing.
	It is no secret that I have not been completely happy with the approach to appointments. Although it is not enshrined in the Bill, it is accepted that there has to be geographical representation: just as in Canada there are always three judges from Quebec, it is acknowledged that there will have to be representation on our supreme court from Scotland and Northern Ireland. My concern centres on the fact that the appointments commission is to put only one name forward. I have argued in the Constitutional Affairs Committee—I divided the Committee, and it accepted the view—that a number of names should be put forward. That is because the judges who are appointed to the supreme court will make extremely important decisions on tax, civil liability and contract as well as on constitutional issues. In my view, greater democratic input is needed. I agree with Professor Robert Hazell, who gave evidence to the Lords Select Committee. He said:
	"I strongly believe that ministers should continue to be involved in judicial appointments and have a bigger say than is now proposed and so should Parliament in its classic scrutiny role. On the executive having a choice, it is very important for the executive to retain a role in senior judicial appointments primarily so that the Government itself should retain trust and confidence in the judges."
	An additional argument is that such an approach offers additional protection for judges: if they are appointed by politicians, politicians might be inhibited from criticising them too much, whereas if, in effect, judges are appointed by the commission—the Minister will have only a veto—they might be subject to greater criticism.
	Before I discuss the judicial appointments commission, I should declare the interest that I was a member of the Commercial Bar Association group that made a detailed submission on the subject last year. I was pleased to hear that the hon. Member for Beaconsfield is generally happy with that part of the Bill. I was not surprised to hear that, because we have reached the present position through evolution. The Law Society called for reform in the early 90s. Lord Mackay as Lord Chancellor opened up judicial appointment by advertising for circuit court judges. Lord Irvine appointed a Commissioner for Judicial Appointments, and Sir Colin Campbell has reported on a number of occasions. The system has been brought generally into line with modern principles of appointment, with equal opportunities and feedback for those who are disappointed. Lord Irvine also instituted the annual publication of a report on appointments. In a way, the proposals in the Bill build on the principles of openness and transparency that already operate. Scotland has a judicial appointments body and Canada has commissions that recommend appointment in some of the provinces and at federal level.
	There are issues surrounding composition. The Constitutional Affairs Committee took the view that the commission ought to be chaired by a lawyer, but the concordat between the Lord Chief Justice and the Lord Chancellor concedes that a lay member should chair the body, so we have to accept that. There has been some discussion about the extent to which the Lord Chancellor can issue guidance, and the Joint Committee on Human Rights states, at paragraphs 1.54 and 1.55 of its report, that guidance by the Lord Chancellor would breach the independence of the judiciary. I reject that view. There can be no human rights-based objections to the Lord Chancellor giving guidance to the judicial appointments commission.
	Merit is the cardinal principle. We cannot have a representative judiciary. Just as I want the best person to do brain surgery on me, I want the best judges. None the less, diversity is not inconsistent with merit. The excellent 2004 consultation paper "Increasing Diversity in the Judiciary" demonstrates the increase in the number of women and ethnic minority lawyers appointed to the judiciary—for example, Mrs. Justice Linda Dobbs was the first black female appointee to the High Court. I commend my right hon. and noble Friend the Lord Chancellor for quickening the pace of increasing diversity.
	I take the point made by the hon. Member for Beaconsfield, but I would put it more colloquially: we have to beat the bushes—we have to encourage people to apply. Some people might, for some reason, be dissuaded from applying. My concern about the judicial appointments commission as proposed is that only one name will be put forward. My argument is the same as I advanced in relation to appointments to the supreme court: it seems to me that democratic accountability would be better served by more than one name going forward to the Minister or the Lord Chancellor.
	Both in terms of the principles that I outlined at the outset of my speech and in terms of the bulk of its details, I think that the Bill is an appropriate measure to put to the House. I shall certainly support it tonight.

David Heath: It is important for Members who are not lawyers to contribute to the debate; otherwise, there is a danger that it will become a dialogue between hon. and learned Members, and the measure is far too important for that to happen.
	At the outset, I should say that the Liberal Democrats support the Bill—but, my goodness, the Government have made it difficult for us to do so during its genesis. I do not accept the enormity of the problems portrayed by the Conservatives, and I do not believe that the supposed furore extends far beyond people with a particular and special interest in the proposals. Indeed, although excellent points were made in the debates in another place and by the Committees that considered the Bill, there was a great deal of trade unionism—people protecting their own interests rather than looking at the wider aspirations of the proposals.
	The Bill is an important measure in anyone's book. The Lord Chief Justice, Lord Woolf, has been cited a couple of times already, but it is worth underlining what he said on 7 December in the House of Lords:
	"the Bill marks a gigantic step forward in our constitutional arrangements. Above all, it means that the future independence of the judiciary will be safer than it has ever been."
	We support that important aspiration. Lord Woolf went on to say:
	"if we value an independent judiciary and its task in protecting our personal freedoms, we should ensure that this Bill reaches the statute book."—[Official Report, House of Lords, 7 December 2004: Vol. 667, c. 759.]
	That does not display the doubts which, it was intimated earlier, the Lord Chief Justice entertained. Of course he had doubts in the initial stages, but they have been resolved by patient consideration of the Bill in another place.

Dominic Grieve: Does the hon. Gentleman agree that the Lord Chief Justice was concerned that there was a serious risk that there would be no end to the legislation? A hiatus was created when the Prime Minister tried to strike off or delete the post of Lord Chancellor in summer 2003. That was, and is, one of the major concerns of the Lord Chief Justice, and it may be one reason why he wanted to bring the matter to a conclusion.

David Heath: I do not think it is for the hon. Gentleman or me to ascribe any further motivation to the Lord Chief Justice, and it would be unwise to do so. I am quite sure, however, that he shared the widespread concern about the way in which the proposal was introduced. The hon. Member for Nottingham, North (Mr. Allen) said in an intervention on the Minister that the Government had been urged to introduce the proposal for a long time—it had been subject to undue delay, but it was not a back of the envelope job. The sad news, however, is that it was both. Yes, the proposal was long overdue, but equally, it was produced on the back of an envelope, because the Prime Minister chose to make fundamental changes to the structure of government on the basis of poor or non-existent advice.
	In my capacity as Liberal Democrat spokesman on constitutional affairs, I often ask people two questions. First, what is the link between the highest levels of the judiciary and my constituency? The answer is that the statue of justice on top of the Old Bailey was made in Frome. Secondly, who was Lord Chancellor in 1075? I am relying on various websites for the answer, as I cannot find any historical details about the brief occupancy of the Lord Chancellorship in 1075 by Baldrick. Everything about the introduction of the proposals smacks of the character of Baldrick in "Blackadder". As hon. Members will remember, he always had a cunning plan. This was the Prime Minister's cunning little plan, but it was rather a bad one, as it involved announcing the abolition of the post of Lord Chancellor without, apparently, a single thought about what would happen next. Indeed, the announcement was made on 12 June 2003, but it was not until 14 July 2003 that we finally had a White Paper that gave substance to the Prime Minister's spurious suggestions.

John Gummer: Has the hon. Gentleman not underestimated the difficulty? When Baldrick had a cunning plan, he usually gave some evidence of thinking it out. The problem with this cunning plan is that when it was announced, there was no evidence that anyone had given it any thought at all.

David Heath: I agree with the right hon. Gentleman, but I fear that I will become lost in a metaphorical wilderness if I pursue the Baldrick theme too far, so I hope that he will excuse me.
	Not only did the proposals lack any substance other than a relabelling, which was palpably inadequate to deal with substantial constitutional change but, even worse, people who should have been consulted were not aware that an announcement was about to be made. The Lord Chief Justice had clearly not been consulted, and neither had the senior judiciary. No one in Scotland was consulted at all, despite the fact that the proposals had implications for Scottish constitutional arrangements. That is a serious criticism both of the way in which the machinery of Government operated under the Prime Minister's edict and of the readiness to put into effect a fundamental change to our constitutional arrangements.
	Consultation has now taken place, and it has been extraordinarily productive. We should give credit to everyone who has been involved in the discussions. In particular, the senior judiciary have been remarkably sensitive to the intentions of the Government, who have made a sensible response to those concerns. The concordat, which has been mentioned several times, is crucial, and it underlies our position on the Bill.
	I do not wish to speak at inordinate length in a debate that has already taken up considerable time, but I shall look briefly at the proposals. The first does not concern the Bill itself, but the Department for Constitutional Affairs, which we christened "Decaff". People in the Department do not particularly like that abbreviation—which only encourages me to use it—but it is apt, because of its "justice lite" brand, as opposed to the full-bodied equivalent . We have argued for a long time that we need a proper Ministry for Justice, which would encompass the responsibilities of the Department for Constitutional Affairs but would also go much further, taking a large chunk out of that monolithic bailiwick, the Home Office. Responsibilities that are not appropriate for a Minister with executive responsibility for the police and investigative services would be removed to a protected area, where the proper concerns of justice and the relationship between the citizen and the Executive could be taken into account. Our principal criticism, therefore, is not about the establishment of a new Department but about the fact that it does not have the scope to do the job that we would like it to do.
	Secondly, we are anxious about the constitutional position of the Lord Chancellor—a post that was abolished in a day, but is now to be restored and maintained in perpetuity. There has been a great deal of debate about the doctrine of the separation of powers and, as hon. Members on both sides of the House are aware, such a doctrine is not current in our political philosophy, although it is in other countries. Surely, however, we have a concept in our political affairs of the de facto separation of matters that are properly the province of the judiciary and those that are properly the province of the Executive and the legislature.
	It was an anomaly of staggering proportions to have in one person a Cabinet Minister with executive power—a member of the Executive—as both the head of the judiciary and the Speaker of a House of the legislature. We only have to imagine for one moment arguing in a newly formed democracy that that was the right way for it to organise its affairs to realise what a constitutional anomaly it was. I am personally glad that the anomaly has at last, partially, been resolved. That is something that I have called for over many years, and I shed no tears for the judicial role of the Lord Chancellor, which I think was largely illusory in any case.
	I part company with those who say that Lord Chancellors have never exercised their powers in a partisan way. The hon. Member for Beaconsfield (Mr. Grieve) was right to say that over the past 25 to 30 years we have had excellent Lord Chancellors who have not exercised their powers inappropriately. However, I am sure that he would agree that in the early part of the 20th century there were Lord Chancellors who were anything but entirely open and transparent in the way in which they exercised their powers.

Dominic Grieve: I entirely agree with the hon. Gentleman. Until after the second world war it was considered perfectly proper for a Lord Chancellor to exercise a degree of political patronage in judicial appointments. Times have moved on. That shows how evolution can take place within existing structures in our constitution by convention that subsequently become irreversible.

David Heath: If it is irreversible, let us make that clear in our statutes. That is an argument for the measure, and I think that there was scope for abuse.
	I have difficulties with the notion that the Lord Chancellor has to remain as the Secretary of State in charge of a major Department of State, in the House of Lords. I have problems with that on a number of fronts. I think that as a matter of principle, Secretaries of State should be answerable to this House. I am sorry that not everyone agrees with that, but I think that that should be the position. With all due respect to the Under-Secretary of State for Constitutional Affairs, the hon. Member for Tottenham (Mr. Lammy), who is sitting on the Government Front Bench, I do not think it is right that this major Department of State can answer to this House only through the person of a junior Minister. The Secretary of State should be available to us for questioning.
	I find it difficult to countenance any Secretary of State being in the upper House. That is my personal view. I cannot understand the position of those who criticise the present Lord Chancellor by saying that he is one of the Prime Minister's cronies and used to be his flatmate, which played a part in his appointment. I think that the present holder of the position often does a very good job, but that is a common criticism. Why, then, would he want to institutionalise that arrangement, so that every future Lord Chancellor—every future Secretary of State for Constitutional Affairs—had to be a crony of the Prime Minister of the day, because only by that patronage does anyone appear in the other place?
	That is an extraordinary anomaly. There is a further anomaly, and I have to say that the hon. Member for Beaconsfield rather ducked it when he was intervened on by one of his hon. Friends. If the Conservatives wish to see an upper Chamber that is 80 per cent. elected, why is it all right to have a Secretary of State—a Lord Chancellor—who is elected and sits in the upper House, but not all right to have a Secretary of State who is elected but sits in the lower House? Where is the constitutional logic of that position? I do not think that there is any logic.

Dominic Grieve: rose—

David Heath: I give way to the hon. Gentleman. Perhaps he can persuade me.

Dominic Grieve: I leave to one side the composition of the upper House after any reform that a Conservative Government might carry out, but the hon. Gentleman is missing the point. By virtue of taking the oath, irrespective of whether the Lord Chancellor is elected or not, he will not be able to have a further career in politics thereafter. That is the central point: the Government do not wish to see that happen. It is a question about the career of the person who holds the office, and the sensible place for him to be is in the House of Lords.

David Heath: I am much more content to ensure that the Lord Chief Justice is genuinely independent of the Executive, is genuinely independent of the legislature and carries out many of the functions that give rise to concern in the hon. Gentleman's scenario, rather than being Secretary of State for what I would wish to be a Ministry of Justice. Under the present arrangements it will be a Department for Constitutional Affairs.

Douglas Hogg: I do not want to disparage the Lord Chief Justice or other holders of that office. I am sure that the hon. Gentleman will recognise that much of the debate is essentially of a political character, as between the holder of the office of Lord Chancellor and the Home Secretary. The problem is that the Home Secretary's office is extremely powerful. What we need to set against that office is the authority of somebody else who is in a position to bear down on the Home Secretary, and persuade his Cabinet colleagues to disagree with him. There are advantages, therefore, in adopting the suggestion of my hon. Friend the Member for Beaconsfield.

David Heath: I am grateful to the right hon. and learned Gentleman for his comments. I listened to him with a great deal of respect. It is precisely for that reason that I do not want to see a Lord Chancellor without any great status within the pecking order of the Cabinet because of the relatively junior status that has been accorded to the Department for Constitutional Affairs—and without the merits of an electoral mandate, too—being bullied by a Home Secretary. I take exactly the point that the right hon. and learned Gentleman has made. I think that we would be better served by having a strong Cabinet Minister answerable to the elected House with a mandate of his or her own to counter the weight of the Home Secretary. We should also rearrange the functionality between the two Departments so that the Home Office is cut down to size and the Department of Justice—as I would have it—is a much more significant body. That is a genuine disagreement that we can hold. I think that we can both agree that there is a need for the person who heads the Department to have sufficient status and weight to be able to hold their own.
	I shall now move on to the Supreme Court—

David Kidney: To be clear, before the hon. Gentleman moves on, given the Liberal Democrats' support for a full-blown Ministry of Justice, may I take it that he believes that the Lord Chancellor does not need to be a lawyer to hold that position.

David Heath: That is my view. That is the view that I will express in Committee when we reach that stage. I do not want to mislead the hon. Gentleman, and I will make it plain that some of my noble Friends, many of whom have legal qualifications, take a different view. However, from this Bench in this place, I shall express the view that the legal qualification is not a necessary part of the equation.
	I now move on to the proposals for the Supreme Court. This is a significant move but not a revolutionary one. It is absurd to suggest that it is. It is confusing and pointless that we have a Supreme Court already, with absurd names such as the Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council acting in its constitutional role, and we choose to call the members of the Supreme Court the Lords of Appeal in Ordinary. Lords of Appeal in Ordinary is exactly what they are not, and nobody should suggest that they are.
	We have a senior court which is not the House of Lords despite the fact that people think that it is. It is a separate body of judges that happens to sit, rather uncomfortably, within that edifice. It has an entirely different function, as has already been argued in this debate, and very often Law Lords do not exercise their role within the legislature, and nor should they because that puts them in an invidious position in dealing with their primary responsibilities.
	We have fictions built on fictions built on fictions. Because I believe that we should be a modern democracy where things are as clear as possible—although nothing in the law can be entirely clear—it is helpful to the general public to understand that we already have a Supreme Court that is a separate entity and fulfils a particular function, and that the members of that Supreme Court are the senior judiciary of the land.
	As regards judicial appointments, I wholly support the proposals, with one caveat. In Committee we need to do justice to the concerns expressed by Sir Colin Campbell and the Commission for Judicial Appointments about the structure and role of the proposed judicial appointments commission. We ought to be careful to assess the validity of those concerns.
	In general terms, there is much to support in the proposals. I welcome the enhanced role of the Lord Chief Justice. As I said, I should like to explore whether the Attorney-General should have further express duties. The holder of that office sometimes plays a more significant constitutional role than we give credit for. It is a developing role, and transparency and clarity about what is expected of the Attorney-General, particularly in giving unequivocal advice, perhaps when that is not sought, on the appropriateness or legality of Government actions, might be an enhancement of the role.

Dominic Grieve: The role of the Attorney-General as the sole proper legal figure in Government has clearly been enhanced by the fact that the Lord Chancellor's role has been so dreadfully diminished. The two go together, which is one reason why the Lord Chancellor's office should be preserved.

David Heath: Or the Attorney-General's office enhanced, as I said. There is more than one way of achieving the same objective.

Douglas Hogg: Will the hon. Gentleman give way?

David Heath: I was trying to be brief, but I shall give way one last time.

Douglas Hogg: I would not want to discourage the hon. Gentleman from being brief, but does he accept that there is in principle much to be said for the Attorney-General sitting in this House, and that whenever possible the Government should appoint as Attorney-General someone who is in this House?

David Heath: It will not have escaped the notice of the right hon. and learned Gentleman that I believe that all Ministers should be appointed from this House. That is not my party's position, but it is my position. An upper House should be free from any patronage in the form of ministerial preferment, and ministerial appointments should be drawn from the elected House. Accountability is important, but that is not the situation at present. It could be argued that ministerial appointments solely from this House would limit the number of potential applicants for the role. This will not happen in my lifetime, but there could be a Parliament in which no legally qualified Members were returned by the electorate. That would cause the Government some difficulty—although it has not happened yet, and I doubt whether it will happen in the immediate future, judging by recent experience.
	I have long advocated Middlesex Guildhall as the right place for the supreme court. I do not understand why anyone should consider it so self-evidently the wrong place. I understand that there are issues concerning the internal decorations of the place, difficulties with its listed building status, and the fact that the potential members of the supreme court will want a level of informality that is not entirely consistent with the rather austere and formal trappings of a court. Nevertheless, there is considerable symbolic importance to the fact that the court would be situated in Parliament square, in the centre of our democratic system, so that Parliament square would be flanked by at least four of the great estates of the realm—the House of Commons on one side, the Church in the form of Westminster abbey on another, the supreme court on another and, God help us, the Treasury on another.

Edward Garnier: I intervene not because, like the hon. and learned Member for Dudley, North (Ross Cranston), I from time to time sit as a Crown Court recorder in the Guildhall, but to ask the hon. Gentleman whether his views about the suitability of the Guildhall have been informed by a visit to it. Has he been round it inside, as opposed to simply looking at it from the outside?

David Heath: I do not deny that there are difficulties, but they can be overcome. That is the position that the Government have now adopted. The debate has been wonderfully amplified by having a recorder on each side of the Chamber, acting in stereo. I hope the hon. and learned Member for Harborough (Mr. Garnier) will have a chance to contribute to the debate formally.
	Will the Minister confirm that under the Bill as it is formulated there will be two supreme courts—the supreme court of the United Kingdom and the Supreme Court of England and Wales? Will he confirm that he will remove one of those nomenclatures before the Bill reaches its final stages, as there is the potential for confusion with two "supremes" in one statute.
	It is extremely important that we get the funding right. I will not tease the hon. Member for Beaconsfield about how he would achieve cuts in the Department. That was dealt with in an earlier intervention. We cannot allow the important process of justice to be curtailed by a lack of funding. The funding must be predictable, so that those who administer the court can do so with certainty.

Dominic Grieve: Will the hon. Gentleman give way?

David Heath: I was trying to take less than an hour over my contribution, but I will give way.

Dominic Grieve: Clearly, savings will not be achieved by spending an extra £8.8 million a year funding a supreme court which, as I explained, is not necessary.

David Heath: The hon. Gentleman has his view. He also has his calculation of the marginal costs after the establishment of the supreme court, as opposed to its predecessor bodies. I am not convinced that that is an accurate representation. The Conservatives may be putting together figures that are not realisable, in a desperate bid to find potential savings in order to present themselves as a tax-cutting party. There is a danger that the debate will become overly partisan, which is not my intention.

David Kidney: rose—

David Heath: I shall give way for the very last time to the hon. Member for Stafford (Mr. Kidney).

David Kidney: I am grateful to the hon. Gentleman for making me the last person to whom he gives way. This is the intervention that the hon. Member for Beaconsfield (Mr. Grieve) would not take from me. Do not the Conservative costings deliberately exclude the staff and judicial salaries costs from the present system, but add them on to the costs of the new supreme court? They should, of course, be in both calculations.

David Heath: That is precisely the point that I was making about the marginal cost increase. The hon. Gentleman is right. We can all do fuzzy maths, but it achieves nothing and people see through the credibility or otherwise of such proposals.
	On full cost recovery, the hon. and learned Member for Dudley, North (Ross Cranston) was wrong. We have debated the matter. I tabled amendments to the Courts Bill, now the Courts Act 2003, to deal with full cost recovery, which is a serious matter. The idea that litigants in civil actions must pay, for instance, an apportionment for the upkeep of the royal courts of justice is an absurdity that we need to address. I, for one, am not prepared to see the costs of court action being put beyond the means of most ordinary people seeking justice. There is a real fear that that will happen, and the same will apply to cases that are brought to the supreme court under these proposals.
	There is much to welcome in the proposals. There is certainly much to welcome in the concordat that was arrived at with the senior judiciary, and it would be foolish of us to seek to unpick that concordat in Committee or during the Bill's later stages unless we have very good reason to do so. I shall not resile from my position that the Department for Constitutional Affairs should take a greater role—a matter that I shall debate further—but we shall support the Bill, although not the time allocated to debate it, and we shall resist those who oppose it, either through blind reaction or sectional interest, which are unworthy of the considerable constitutional advance that the Bill represents.

Several hon. Members: rose—

Mr. Deputy Speaker: Order. Let me offer a word of comfort to right hon. and hon. Members. Provided that everyone does not take a minimum of 29 minutes, there will be ample time for contributions to be made to the debate. I call Mr. David Kidney.

David Kidney: Thank you, Mr. Deputy Speaker, especially for that advice.
	If anyone looks at the Register of Members' Interests, they will see that I have only one entry, which is as a non-practising solicitor, so I have no practical interest in the debate. However, as a former solicitor, I strongly support the Law Society's long-running campaign for more judges to be appointed from the country's body of solicitors. If I mention that from time to time during my contribution, that is the reason. It is certainly not from any personal expectation of reward if more solicitors become judges.
	I welcome the Bill's commitment to the rule of law, which my hon. and learned Friend the Member for Dudley, North (Ross Cranston) dealt with at some length in his contribution, and the statutory pronouncement of judicial independence, which is an improvement on the present status of the law and gives a statutory underpinning to the safeguards that we enjoy—the safeguard against arbitrary government, the safeguarding of our human rights.
	On the separation of powers, those hon. Members who have mentioned Charles-Louis de Secondat, Baron de Montesquieu (1689–1755) have been unfair to the gentleman, who was an influential philosopher and a judge—as it happens—in France and whose influence was sufficiently long-lasting for his views on the separation of powers to be accepted quite fully in the writing of the original American constitution. It is true that he had an idealistic view of the benefits of the so-called separation of powers in this country at the time that he viewed it, which I think was in 1748, but he probably was not that far wrong at that time in the development of our unwritten constitution. As a snapshot at that time, the Executive were very much represented by the Crown and the Ministers who advised the Crown, the legislature was a nascent and growing House of Commons and, effectively, an established House of Lords, and the judges were independent of both, which was what impressed him in his thinking and writing. Time has moved on and he did not foresee the growth of an Executive with the legislature in this country. What is so different here today is the way in which the Executive dominate the legislature. Happily, the Executive do not dominate the judiciary, and the Bill is here to ensure that no future development in our unwritten constitution changes that. That is why the Bill is welcome.
	Just to finish with the Baron, he did say:
	"The political liberty of the subject is a tranquillity of mind",
	and on the loss of liberty he said:
	"there is no liberty if the power of judging be not separated from the legislative and executive powers."
	I agree with him on that.

Jonathan Djanogly: I thank the hon. Gentleman for giving way. Did he not also approve of the American system where the separation of powers goes somewhat further than the Government are proposing, particularly in relation to the Executive and the legislature?

David Kidney: I take it that the hon. Gentleman is asking whether I approve of the American constitution. I am simply happy to say that I prefer living in this country and I enjoy its constitution much more.
	It is right that the position of Lord Chancellor should be filled by someone who no longer sits as a judge, no longer acts as the Speaker of the House of Lords and no longer carries personal responsibility for the appointment of members of the judiciary and Queen's counsel. It is right to impose a duty on the Lord Chancellor, whoever that may be in future, to uphold judicial independence. It is brilliant that the Bill goes beyond that and imposes the same duty on all other Ministers and all other persons who may have an influence on the administration of justice, but I see no reason why we should require the Lord Chancellor to have a legal qualification or to sit in the House of Lords. I am absolutely with the hon. Member for Somerton and Frome (Mr. Heath) in thinking that it is far more desirable in terms of democratic accountability that a Minister of State should be in this House at this Dispatch Box facing questions from elected representatives of the people.
	In future, judicial appointments will, by statute, be required to be made solely on merit and to require good character. That incorporates in statute what we presently practise, so that is correct and desirable. The statute is welcome because it includes those words, but a system of appointment must also be transparent, fair, efficient and independent to command widespread public confidence, so it is essential to ensure that the recruitment process itself attracts the broadest possible field of candidates. The judiciary tends to continue to attract those who look like the present incumbents. There are too few women, too few lawyers from ethnic minorities and I repeat that there are too few solicitors.
	I give credit to those who have steered the process to reach the point that we are at today, beginning with Lord Mackay, who was mentioned by my hon. and learned Friend the Member for Dudley, North, who introduced the advertisement of vacancies and competition for appointment in 1994,. That was a welcome first step in a process that has since moved on. Hon. Members will appreciate that Lord Mackay was a member of a Conservative, not a Labour, Government, so I like to think that there would be cross-party support for the development that has since taken place.
	By 1998, Lord Irvine, as the Lord Chancellor, was able to end the invitation-only system of appointments to the High Court bench. He was able to change the age limits for applicants and some of the sitting requirements for part-time judges—for example, block sittings—so as to be more flexible in accommodating people who would have found the previous system too restrictive for them to apply to be judges. He was also able to introduce the requirement that allegations of misconduct or serious criticism against an applicant had to be specific and backed by evidence or be ignored. He was able to introduce a lay input into the recruitment process itself, and, as my hon. and learned Friend said, he introduced the annual report to Parliament about the appointments process—again, desirable developments moving in the right direction. When he was still Lord Chancellor in 2001, it was Lord Irvine who introduced the present independent Commission for Judicial Appointments.
	In terms of the continuation of the development and praise for it, I should add that the present Lord Chancellor has introduced the proposals in this Bill, themselves subject to widespread consultation before their introduction, showing that we continue to move in the same direction.
	The existing commissioners for judicial appointments support further progress in this direction. In their last annual report in October 2004, they called for the continuation of the independent audits of the recruitment process, and both I and the commission look forward to a speedy extension of the new system to more of the appointments to lower judicial offices. The significance of that is that the commission could be criticised for not understanding what is going on in the legal profession lower down if it has no responsibility for the appointment of those judges. Broader experience and knowledge of the developing pool of judicial talent would help the commission to make future appointments higher up the judicial system.
	I hope that the judicial appointments commission will make further improvements on fairness and transparency, continuing the good work that has been done to date. I hope that it will integrate diversity into its recruitment work, because I strongly believe that diversity reinforces merit and does not detract from it. I hope to see continued structured and accountable methods of collecting views from the judiciary on candidates who are suitable for office. I also hope that it will introduce further audit trails on how selection decisions are reached. Parliament and the Lord Chancellor can help to secure improvements such as helping to ensure diversity, consistent with merit, in the future judiciary.
	Clause 58 covers the guidance that may be given to the commission and to selection panels for the most senior judges. Guidance may be issued on identifying persons who are willing to be considered for selection and on assessing them. The Bill states that the purposes for which guidance may be given
	"include the encouragement of diversity in the range of persons available for selection."
	My hon. Friend the Member for Leicester, East (Keith Vaz) asked the Minister whether he will assure the House that the good progress that I have recounted will continue. The best answer that the Minister could give would be that the Government will be active in using guidance to ensure that such work continues.
	On the procedure for issuing guidance, which involves not only the Minister but Parliament, clause 59 requires the Minister to
	"consult the Lord Chief Justice"
	and
	"lay a draft of the proposed guidance before . . . Parliament."
	The guidance must be approved by affirmative resolutions of both Houses of Parliament before it is given to the commission and to the selection panels. Clause 58 states that the panels and the commission must have regard to any guidance given. For the sake of completeness, the guidance may be revised and reissued too.
	After the change from the present voluntary commission to the statutory commission, the old voluntary commission will be left with complaints, which will be dealt with by a new judicial appointments and conduct ombudsman, who will, to all intents and purposes, cover the commission's present complaints role.
	One worrying omission, which I hope is put right in Committee, is that the Bill does not include a provision covering the voluntary commission's current role in auditing future judicial appointments competitions. Part of operating fair recruitment processes will be understanding what is going well and what is going wrong, which will require somebody to continue the audit practice of the present voluntary commission in the new system, because the Bill does not charge anyone with that responsibility.
	I welcome the Bill and the proposal to introduce a new supreme court. I agree with the Joint Committee on Human Rights that a supreme court with justices barred from sitting in the House of Lords will make it less likely that violations of the European convention on human rights occur in practice. I hope that Middlesex Guildhall becomes the home of the new supreme court and look forward to 2008, when the collection of buildings in Parliament square will become even more impressive, demonstrating in both the geographical and political landscapes that the tranquillity that Montesquieu discussed in 1748 has come to Westminster, the home of democracy.

John Gummer: When the Government propose a major constitutional change, they must first explain that the problem is real and that it is worth taking such trouble over. The Minister is always charming and careful when he puts the case to the House, but he found it difficult to bring together two contradictory concepts. He wanted to assure us that everything has been okay for some time, that the judicial system is fair and that the judicial system has not been affected by party political considerations. Although such an example would have been to some extent anomalous, he could not point to any particular uncertainty in the law because of political involvement.
	The Minister went on to say that the structure has caused discomfort and a lack of entire happiness for many years and that it needs radical modernisation. I am sure that one could make the case for tidying up most things, but we should be concerned with priorities and my worry is that the matter is not a priority. Given that the judicial system is right in principle, it is not the issue to go for, given the large number of other things that I can recommend the Minister to do, although, in fact, he himself would not have to do most of them. I would like a considerable extension of environmental policy to do something about climate change rather than talking about it. I can suggest a range of real priorities—we could, for example, improve the standard of our built environment, given that we are building so many houses.
	The Minister has not established the fundamental basis for the Bill or explained the real reason for it. He said that the matter is difficult and that people misunderstand it. He said that, if one were to introduce a new constitution, it would be jolly difficult to argue that it should be the same as our system, but he would also find it difficult to argue for a constitutional monarchy or an established Church. I have no interest in those two subjects and no interest in the Bill, because I am not a lawyer—I have never wanted to be a lawyer and think that there are too many lawyers in the House. I am perfectly happy to discuss the matter and am not arguing on behalf of a vested interest.
	It is peculiar to argue that everything has been okay, but we must have radical change because we cannot export our constitution to the rest of the world. The Minister has missed the fundamental nature of our constitution—that it is evolutionary, that it produces over time a series of checks and balances and that it is not written because it largely relies on conventions that people continue to observe.

Edward Garnier: I do not want to interrupt the flow of my right hon. Friend's speech with an indelicate intervention, but legal services are a successful invisible export from this country and overseas litigants are encouraged to come to our British courts in London to litigate their disputes. There is no guarantee that the great kerfuffle caused by the Government will enhance that invisible export one jot.

John Gummer: I am not expert on the size of those exports or their invisibility, but the present situation does not seem to put off people from abroad who ask for British law to be the basis of the interpretation of contracts and the like; indeed, the system appears to work quite well. On the question of practicalities, the people whom the Minister prayed in aid—the people from far beyond the seas who supposedly would not understand it—have not found it difficult to see that the system works. Indeed, only last week I perused a contract signed by a previous chairman of the company on behalf of somebody whom I employed. Although the company was French, the contract was to be understood in the context of English law and any argument about it was to be heard in the English courts. As the French today—leave alone Montesquieu—find it easy to understand that the system works pretty well, it is reasonable to think that it is not too bad. It may not be perfect—I am sure that the hon. and learned Member for Redcar (Vera Baird) will mention several aspects that she would like to improve—but that is true of most of life. The Minister has not explained why this change, with all its ramifications, is a sufficiently necessary or successful alternative to be considered by this House.
	The Minister has not established the first point—that there is a real problem that needs immediate and fundamental resolution in this House. The second point that he must establish is that, having identified such a problem, he has made a considered response. Here, I very much sympathise with him. He had obviously thought carefully about how to deal with the fundamental difficulty that the issue was not introduced in the most felicitous of manners. I am sure that deep in his heart he said to himself, "I wouldn't have done it this way myself. I wouldn't have suddenly announced something that I had not talked to anybody about, not thought about much, and did not know much about, and then found myself in a mess so that my best friend had to go off and explain to people that what he had said was not quite what he had meant." This started off in a very embarrassing way—"back of an envelope" would be putting it politely.
	Perhaps that would not matter so much were not this part of a pattern. Lord Butler restrained himself for many months before making his recent comments about the nature of this Government's approach to institutions of state. He argued, as an independent voice who was at the heart of Government, that this Government make decisions on the sofa. Very often, they do not act properly and sensibly by listening to people, finding out about the various views, and trying to use the institutions of Government better to serve the people, but by changing the institutions of Government ad hominem.
	Let me give two examples that parallel what we are discussing. We have an Office of the Deputy Prime Minister, as we previously had the Department of the Environment, Transport and the Regions, that is based not on making Government more efficient or effective, but on providing what was thought to be a suitable job for the Deputy Prime Minister. His first Department did not provide him with a suitable job because he mucked it up considerably, so the Government created another Department based upon the same principle.
	Perhaps I would not mind that happening on one occasion, but I was very upset when the Government decided to abolish what everybody had seen as the best and most powerful Environment Department of either party or of any European country. They took it away from planning and local government, where it had the power to act, and shoved it in with the Department for Environment, Food and Rural Affairs, as though the environment were something to do with rural development and woolly animals. It is not surprising that since then the environment has had no influence on any of the Government's decisions. When they introduced a planning Bill, the Minister responsible for the environment was never consulted.

Douglas Hogg: I suggest to my right hon. Friend that there is another ad hominem change in which we might both have an interest. Following the foot and mouth debacle, the Ministry of Agriculture, Fisheries and Food was destroyed and responsibility for agricultural matters was pushed right down the pecking order.

John Gummer: My right hon. and learned Friend has been an Agriculture Minister. The Secretary of State who runs DEFRA has done a remarkably good job with the tools that she was given. The Department was created to give her a sufficiency of power to make up for the fact that she was going to be moved to make space for the Foreign Secretary. That was done over lunch—it was not back of an envelope, but back of a menu.
	My point, Mr. Deputy Speaker—lest you should be hovering in your seat, about to suggest that I must concentrate on the Bill—is simply this: one does not arrive at good institutional solutions by making suitable packages for one's friends, but by doing the job properly and allowing the Government to function. That is why this issue is so serious. This Government are often characterised by saying the right thing and wanting to do the right thing, but very rarely achieving it. They are a Government of words, not action, and they have shown throughout that they cannot make the Government system work.
	In saying that, I am citing the Prime Minister. After the first period of Labour Government, he admitted, "When we started we thought that when we said something, it would happen. Then we found that it didn't happen, so we would have to make it happen." Four years later, he still has not made it happen. The Government still do not deliver, even in areas where I support them. I support most of their aims on the environment, but I can no longer pretend that they have delivered any of them. Now, because the European Union has pointed out that we have not brought down our emissions as we promised, they are going to sue the EU to prevent it from capping those emissions.
	In this case, the Government do not say, "There is a problem, we will prove that it is there and provide the institutional solution", but, "We don't really have a problem, there isn't really much to do, so we will make a fundamental change, but we can't prove to you that it will work in practice." The Minister did not explain how it would work. Indeed, he was at his weakest when he tried to argue that he could not do so because the other House had not made its decisions about whom it was going to call what to do which, and that there were problems about what would happen if the Prime Minister appointed as Lord Chancellor someone who did not sit in the House of Lords or, if he did appoint someone who sat in the House of Lords, whether he might chair its proceedings. As the Bill started in the House of Lords, it might have been helpful to have had answers to such questions.
	We do not have those answers because the Minister started off on the wrong foot. The Bill did not come forth as the result of proper discussion and the serious involvement of all the appropriate parties, but because somebody wanted to shift people around on the board and make Cabinet changes without thinking about the results. The Minister may shake his head, but no one but he believes that we are here because of logical Government decision making. We are here because the Prime Minister made a mistake and had to cover it up by producing a Bill that would otherwise not have been introduced. I can imagine that, at some time, the Government might have believed that the Bill was a convenient measure to introduce when they did not want to present anything too controversial with the public to make up for the Hunting Bill, but that is not the reason for our debating it now. We are debating it now because the Prime Minister shot from the hip and found that he had shot his fox.

Christopher Leslie: I would understand if the right hon. Gentleman disagreed with the proposals, but it does him no credit to belittle the logic and the rationale that I believe that I presented to justify a significant change in our constitution. Let us consider, for example, his point that the Lord Chancellor should be a lawyer or a peer. Does he claim that he is not sufficiently capable of undertaking that ministerial post and that he is somehow not qualified or capable of being appointed to it in future?

John Gummer: It is not among my ambitions. However, if the Bill had been approached by trying to find a consensus for change rather than pre-empting it, it would have been more logical and not open to the specific worries that now beset the Under-Secretary. I do not believe that I belittled his arguments. He is here, although not a lawyer, as an advocate. We know why he is here—he has been presented with a Bill and he has to do the best he can with it. In general, with his normal charm, he has done a great deal of good, but he cannot get away from the problem.
	The problem is that the Bill exists not because of a concerted and sensible approach to the constitution, but because the Prime Minister made a bodge-up. To try to overcome that, it was thought better to try to produce something that might at least stand up, by which time he was in no position to gain a commonality of view. A considered response is crucial on constitutional matters. It would not matter if we were discussing a less important subject, but it matters not to have got a considered consensual response on a question that lies at the heart of the relationship between the powers of Government, the House of Commons, the House of Lords and the judiciary.
	Now that we are here we must ask for the third point that is necessary for good legislation. We should demand proper scrutiny. If the problem has not been properly adumbrated and the response is far from considered, the House should demand at least proper scrutiny. I should like the Under-Secretary to reflect on the way in which he answered some of the questions that were put to him. I believe that future generations will speak harshly of the way in which the current generation has damaged the nature of Parliament.
	The guillotine, without debate, that is compulsory for every Bill is a fundamental constitutional outrage. It means that the Government not only control the agenda, but decide the length of time that they believe should be devoted to any aspect of a Bill. As we witnessed earlier, the Government also decide whether a matter should be debated on the Floor of the House or Upstairs. The Government, with a majority, do all those things irrespective of any longstanding convention of the House. We heard from the Speaker that there was no position from which to defend the rights of Back Benchers because the debate is subject to a vote and not to his prerogative.
	Given that the Government have started on the wrong foot, have experienced some difficulty in proving the need for the changes and have had great difficulty in providing a considered response or a proper consensus, I would have thought that they would at least ensure that the whole Bill was debated on the Floor of the House, as constitutional Bills should be, and that enough time was provided for that. The deal should have been done by the Government and the Opposition, with the involvement of the Liberal Democrats in the discussion. The Liberal Democrats take a different view from mine, but I believe that we have let the nation down by not enabling the country to understand how we have limited our ability to deal with legislation.
	There is more bad legislation than ever on the statute book because there is more undebated legislation on it. To make life more convenient for Members of Parliament, we have become more convenient for the Executive. To make our sittings times shorter and our hours more social, we have brought about a position whereby our constituents are faced with largely undigested Bills. Without the House of Lords, legislation would be impossible for the judiciary to interpret or tackle. I feel ashamed in my surgery when constituents approach me and say, "Mr. Gummer, how could anyone pass that clause?" I look the matter up and find that that clause has not been discussed. The compulsory timetable—the guillotine; that foreign invention that the Government have forced upon us—is intolerable.

Douglas Hogg: To reinforce those views, I invite my right hon. Friend to read the law report in The Times today on the case of Bradley. The court has been making similar points to his about the torrent of ill-considered and ill-drafted legislation.

John Gummer: I am glad that that is the case. The fact that a court has made the point explains why the problem is at the heart of the Bill. The relationship between the law makers and the law interpreters is necessarily uneasy—there is bound to be tension; there always has been—but such tension can work creatively as long as both sides remember their purpose. Our purpose is to produce good law so that judges can make good judgments. We have allowed the Government to emasculate us.
	I stress to my hon. Friend the Member for Huntingdon (Mr. Djanogly), who is on the Front Bench, that before he gets too enamoured of the wholly alien United States system, we have a parliamentary democracy and a key point in it is the ability of the legislature to keep the Executive under scrutiny and control. That means that the opposition—in the Government, of which there is a good deal, and outside the Government—must have the time to do that.
	My worry about my party is that when we return to power we will say, "Well, they did it to us, so we won't give the powers back to the Opposition." I want to stress now that when we return to power, some of us will insist that our first action is to give back power to the people. That means that this House must have the opportunity to debate issues, such as the subject of our discussion, in the way in which we always did formerly, and thus produce legislation that is the envy of the world.

Sydney Chapman: rose—

Peter Pike: Will the right hon. Gentleman give way?

John Gummer: I shall do so shortly, but first I give way to my hon. Friend the Member for Chipping Barnet (Sir Sydney Chapman).

Sydney Chapman: I agree with my right hon. Friend's comments. Earlier, he mentioned the Planning and Compulsory Purchase Bill. He may be interested to know that of the 92 clauses in the first measure, only 26 were discussed in Committee. That resulted in the vast part of the Bill having to go to the other place to be considered, probably in a rather rushed manner, before the Government decided—uniquely, in my political career—to recommit a Bill to another Committee. That is the method of the madhouse in dealing with legislation.

John Gummer: I know that my hon. Friend—

Mr. Deputy Speaker: Order. I say to the hon. Member for Chipping Barnet (Sir Sydney Chapman), the right hon. Member for Suffolk, Coastal (Mr. Gummer) and to the House as a whole that we are now straying somewhat from the Bill.

John Gummer: I will not pursue my hon. Friend's point about the Planning and Compulsory Purchase Bill. He did, however, draw our attention to the crucial issue that, if we are to agree to the major constitutional changes in the Bill, we should have time to discuss them. I say to the Minister that it would help to regain a consensus on an issue that really matters if, even from his relatively junior position, he could convince the powers that be that showing courtesy to the House by giving us time to debate the whole lot on the Floor of the House would help considerably. It would also mean that many, like myself, who have doubts would find themselves much closer to where he wants us to be—even though I do not think that we should be discussing this because we have other things to do.
	So, is there a real problem with the present system? No, that has not been shown. Has there been a considered response? Manifestly not. Will there be proper scrutiny? Not unless the Minister is able to convince the powers that be that there should be. Lastly, there should be an effective outcome. I do not know whether the Minister has looked at the notice outside the new Constitutional Affairs Department. It bears an interesting, if ungrammatical, slogan: "Justice, rights and democracy". There is no comma after "rights", so we must think of rights and democracy together. I am not quite sure why, but there we are.
	The slogan was invented by the present Lord Chancellor; I found that out because I asked a lot of questions about it. The interesting thing about it also illustrates part of the problem with the Bill: it mentions rights but not duties or obligations. I wrote and asked representatives at the Department whether they could explain why, when we are to have a new Department, we are for the first time creating a society in which we talk about rights but not obligations. Some of us believe that no human being—no creative being—can have rights, but that we can only have obligations. Our rights are found in the obligations of other people and institutions towards ourselves.
	The problem with Tom Paine was that he was wrong. He did not understand the nature of obligation. The great advantage of emphasising duties and obligations is that we remove the selfishness that comes with people who say, "I've got my rights!" If we all thought a bit more about our obligations, perhaps we would understand that a society run on that basis would be much more likely to be one in which the rule of law would be the representation of our duties, and that the more fortunate we are, the greater those duties and obligations become. To set up a Department that refuses to include in its slogan the word "obligations" or "duties" is to set up a Department that starts by being fundamentally flawed.

David Lammy: I hesitate to intervene, but I remember answering an earlier question on this matter from the right hon. Gentleman. We cannot have justice or democracy without responsibility. That is the thing that connects citizen to citizen; we cannot have democracy or justice without it, and he knows that.

John Gummer: Then why does the Minister refuse to put it in his Department's slogan? This country is filled with people, both rich and poor, who believe that they have rights but not responsibilities. The only way to change the nature of our society is to make all of us insistent about obligations, starting with our own—with mine and the Minister's—and moving on to everyone else's. This is at the heart of the Minister's missed opportunity. I gave him the opportunity to change this. I asked him a question and waited for his response. It would not have cost much, when we are spending £30 million, to replace the word "rights" with "obligations" in the little slogan outside his new smart offices.
	That brings me back to my final point. The effective outcome will have to be paid for. I began by suggesting that it had not been established that there was a real problem. Indeed, the Minister waxed so lyrical about the excellence of the system, the honesty of the judges, the independence of Lord Chancellors and the reticence with which the Law Lords behaved during debates in which they might have an interest, that he was unable to argue much of a case for the need for the Bill. He was therefore even less able to argue the case for the cost involved.
	I know many people who would say that if we have £30 million, we should spend it on giving people more access to justice. There are people who cannot get their case heard because of the slashing attack on legal aid over which this Government have presided. It now takes people longer to get into the courts, and it is more expensive for them when they get there. This Government have achieved that. That £30 million could be very much better spent. I do not know whether the Minister is married—

Christopher Leslie: Nearly.

John Gummer: Then this is an ideal opportunity for someone who has been married for 27 years to give the hon. Gentleman a small piece of advice. When one's wife asks, "Can we afford to do this?", the one argument that one can never put forward is, "Yes, but only if we don't do that." That cannot be part of the argument. The argument is always about doing both. That is a necessary part of life. The trouble with Parliament is that we are acting like that. The hon. Member for Somerton and Frome (Mr. Heath) got up and said that we had to have the best legal system in the world and that if it cost a certain amount of money, that would be the amount we would have to spend. The Liberals are well known for doing this, as they have no hope of coming to power. However, if we spend it on that, I am afraid that we cannot spend it on anything else.
	We have created a Bill whose justification has not been made out. It is not a considered response to a proper discussion. It will not be given proper scrutiny, and it will use resources that would be better used elsewhere. I am sorry that it has been brought before us and I wish that we were spending this time dealing with the issues that really matter, such as climate change or the way in which people who were already very poor have become poorer under this Government. The Government are not prepared to discuss those issues. Perhaps we could even have a debate about the Iraq war—an unnecessary and unacceptable war that we should have debated properly. We spent seven hours discussing it, yet we spent 200 hours on the Hunting Bill. This Government have no priorities and, above all, they do not know how to do things. They should not institutionalise the means of achievement, and that is why the Bill should be opposed.

Vera Baird: It is a pleasure, as ever, to follow the right hon. Member for Suffolk, Coastal (Mr. Gummer), although I am baffled by a number of the things that he said. I am left almost speechless by his comments about this Government putting people into poverty, when in fact we have rescued more than 1 million children from the poverty in which they were left by his Government, and by his complaint about cuts in legal aid, when we are spending more on it than ever before and are distributing it better.
	I should like to get to the point of this debate—something that the right hon. Gentleman did not do to a great extent—and say that this is an excellent Bill. Its main provisions will bring about a long-overdue modernisation of our constitution and start the process of making the courts and the legal system citizen-centred public services, which, to be consistent with a thoroughgoing democracy, is what they should be.
	I applaud the Bill's long-overdue commitment to the rule of law and judicial independence, and I congratulate the Government on introducing it.
	I strongly support the substantial change to the office of Lord Chancellor. In particular, he will no longer sit as a judge, he will not act as a Speaker of the House of Lords and he will no longer carry personal responsibility for the appointment of members of the judiciary and Queen's counsel. One could say that the main need for the Lord Chancellor to offer a separate personal guarantee of independence of the judiciary has been much reduced. I will not repeat the two quotes that I have already given from the Lord Chief Justice, whose negotiating skills with the Bill must be applauded, but he said that the Bill offers a better guarantee of judicial independence. I agree with him. However, there continues to be a requirement that the Lord Chancellor should—indeed, must—defend judicial independence and ensure that the judiciary has the resources to exercise its function and in government to represent the public interest in the administration of justice. That clearly requires the Lord Chancellor to be a senior Minister, but it certainly does not require either of the two restrictions that have been put on it in the Bill: notably that the Lord Chancellor must come from the Lords and that he must be a lawyer—not a bit of it. A Minister in the Lords is no more and no less secure in a ministerial post than a Minister in the Commons. He is no better and no worse equipped to take a strong stance in Cabinet than a Minister in the Commons.
	I take the point made by the Constitutional Affairs Committee that if someone at the end of his career is Lord Chancellor, as in the past—not least because he sat as a judge in the House of Lords, and such seniority is usually accompanied by maturity of years—he will not have a future to be interrupted if he defends the rule of law against his patron's displeasure. Another argument, of course, is that being Lord Chancellor in this place would be the pinnacle of anyone's achievements, but if he disagreed with his patron he could easily have that career ended, in suddenly imposed obscurity, instead of staying in that high-status, top-performing, challenging role. There is still a great deal of pressure, and while Ministers are appointed as they are there is no structural answer. There is only the integrity of the appointee and his or her strength of character. Those characteristics are to be found in this House every bit as much as in the other House.
	No one who takes on the role now can be under any illusion: there will be a statutory duty on them to guarantee the independence of the judiciary and the rule of law. They will be called to account for their conduct of that duty and they will be called to account for any dereliction of it as severely in this House as they would be in the other place. This House is as quick as the other place to see any such dereliction. There is no justification for requiring the Lord Chancellor to be a Member of the House of Lords and there is an overwhelming argument the other way. He must be accountable for his departmental budget, which is more than £3 billion and approaching £4 billion now. He must be accountable to the electorate through this House as every other Minister is. I want to be able to hold the Lord Chancellor to account when a constituent is kept waiting in the courts because a rape case has inconsiderately been listed as a floater. I want to be able to call the Lord Chancellor to account when my local magistrates court is under threat of closure or to raise the thorny issue of anonymity in family court proceedings when legal aid is not available. I cannot do that if he is in the Lords: I should be able to do so. I have great respect for my hon. Friend the Minister, but the proper situation is that the Minister in charge should be in this House and a more junior Minister in the Lords.

Alan Beith: May I suggest that the hon. Lady seek membership of the Constitutional Affairs Committee, which is currently discussing several of the issues she raises? She would then have the opportunity to question the Lord Chancellor on them.

Vera Baird: Sometimes life is simply full of exciting invitations and I shall put that one next to the others. I am grateful for that kind offer.
	My last argument is surely the unanswerable reason why the Lord Chancellor should be a Member in this House. The Tory proposal, as well as being impossible, is crazy. It is crazy to suggest that we should legislate to ensure that a Minister cannot be a Member of the House of Commons. It defies all sense. I might add that the Judges Council sees no reason why the Lord Chancellor should be a Member in the Lords rather than in this place. The judges are the very people who might feel undermined if it were necessary to have a Lord Chancellor in the Lords as a guarantee of their independence, so no one else has a leg to stand on in making that argument.
	It is not necessary to provide that the Lord Chancellor should be a lawyer. One guesses that the next few post holders are likely to be so: it is a huge step to take. However, the composition of the job will change hugely. The equivalent of the Lord Chancellor in the Scottish Executive is not a lawyer, but she is doing the job very well. Of course, it is important to have close relationships between the Lord Chancellor and the senior judiciary, so that the Secretary of State can be well informed by them, but with that help he or she would assimilate the job in the same way—the example has already been used by my hon. Friend the Minister—as the right hon. Member for Haltemprice and Howden (David Davis) has assimilated all the intricacies of the Serious Organised Crime and Police Bill. He is not a lawyer, but he has managed that. My hon. Friend the Minister frequently shows his sophisticated grasp of complicated legal issues, but he is not a lawyer. One has to work hard, but it can be done. I do not buy the notion that the law is so arcane that no one but a lawyer can ever understand the Department, let alone be able to defend it in Cabinet.
	The Law Society has said, and I agree, that requiring that the post holder should be a lawyer could create the perception that the Secretary of State's primary purpose was to protect lawyers, judges and legal interests, rather than the public interest. Lawyers are rarely seen as the voice of the people.
	The Tories would require that the post holder should be a lawyer, and a particular kind of lawyer. He should have held high judicial office for two years, which I think means he should have been a High Court judge or more, or should have had at least 12 years' experience under section 91 of the Court and Legal Services Act 1990, which I think means he has to be a High Court advocate. That would restrict the pool of candidates for Lord Chancellor considerably. In any case, that pool is occupied by those chosen from the uniform elite whom we hope will be widened by the advent of the judicial appointments commission. To suggest that even as we try to open up the pool to academics, solicitors and the lower judiciary, we should preserve the top man's job for that little phalanx of people who already have higher court advocacy certificates is breathtakingly to miss the point. It simply does not take on board the urgent need for modernisation. I oppose totally both of those proposals and hope that the Government will see them off straight away.
	I am pleased that most people now welcome the changes to the judicial appointment process. Such measures are not new. In 1972, a justice committee recommended changes. In 1992, I was privileged to serve on another justice committee, chaired by the eminent Professor Robert Stevens, which recommended change. It is 14 years since Lord Rawlinson proposed in the Courts and Legal Services Act 1990 that there should be change, so the idea is not at all new.
	It is wholly inappropriate for a member of the Executive to continue to be responsible for selecting members of the judiciary. That is the real threat to judicial independence. Yes, people have behaved well, but shot through debates on the subject, both here and in the other place, have been comments that individual Lord Chancellors made characteristic appointments. Lord Mackay, it is frequently said, showed his independence of judgment by appointing Stephen Sedley to the High Court bench—a significant left-wing figure. Lord Elwyn-Jones appointed Sir Morris Finer to the High Court bench but did not appoint Lord Donaldson to be Master of the Rolls because in the 1970s national industrial relations court he fell foul of the then Labour Government.
	The appointments are made by a party politician, whether he is in the Commons or the Lords, and some of them are good. The independence shown by some of our Lord Chancellors has been good but some of them are bad, and the basis of making those appointments will not do. An individual can make a good or a bad appointment and it is individual instinct to try to be fair or to stick resolutely to political patronage, but the way in which it is being done is unacceptable. Judicial appointments at all levels must be made on merit, on a transparent, fair, efficient and independent recruitment process that draws appointees on merit from the broadest possible field of candidates.
	Modern recruitment procedures must be at the forefront, as must be modern recruiters. Of course, the judiciary must be heavily involved, but only within the modern framework of objectivity and neutrality. The judiciary must not dominate the process because it is the homogenous elite that has run the system for so long. It is no joke to say that there has been positive discrimination in favour of public schoolboys and Oxford graduates since appointments began.
	I cringe and worry when people talk about the dangers of positive discrimination, as though we had started from some perfect position where people are selected only on merit. The opposite is true. I am not saying that appointments have been universally bad—not a bit of it. Most of them have been very good, but they have been confined to one class, which has repeated and repeated and repeated itself by selecting those who resemble it. That is not good enough for a modern and diverse state.
	There have not been many serious mistakes. The calibre of the judiciary is generally extremely high—at least in the High Court. There have been mistakes; there have been people who were not up to the job intellectually. There have been people, too, who have no respect for the public who come before them, who think that it is their prerogative to sit in court and demonstrate how clever they are. They do not understand hardship because of their privileged background and demonstrate their cleverness by speaking in an arcane way, to the dismay and misery of people whose future depends on their decisions. Those are bad appointments not because those people are necessarily poor intellectually, but because of those characteristics. Some of those bad appointments would not have slipped through in a proper rigorous procedure.

Dominic Grieve: As I have said on previous occasions, I worry far more about the quality of appointments to the Crown court bench than to the High Court and above. The irony is that at present those appointments have, on the face of it, little or no political input and are likely to have little political input, because they are carried out within the Department. Certainly if the situation is improved by a judicial appointments commission, I shall be delighted. There may be more criticism of those appointments than higher up the hierarchy.

Vera Baird: There is certainly a qualitative difference between some of the people appointed to the Crown court bench and the usually very good people who are appointed to the High Court. None the less, when we talk about the calibre of appointees, we tend to mean intellectual capacity. Of course that is hugely important, but so, too, is being considerate to the public and having the understanding necessary to explain at the highest levels of our court system in plain English what one is discussing and, when addressing someone's counsel, trying to speak not in code, legalese or Latin, but in a way that the people who are paying for it and are entitled to it can understand. Having an understanding of that aspect of the judiciary job is not as universally available as good intellectual calibre, yet it is certainly a key skill. There have been some notable failures of that kind, while some potentially good appointments have stalled through the prejudice implicit in the current appointments system.
	The right hon. Member for Suffolk, Coastal says that nothing in the Bill is urgent. I ask him to reconsider. Senior appointments—High Court and above—tend to come from QCs. I want to tell the right hon. Gentleman some of the things that Sir Colin Campbell and his commissioners unearthed in the process for appointing QCs. There are what we call secret soundings that are now not so secret; Sir Colin Campbell can get hold of them. Indeed, people who have been refused appointment to silk—a necessary gateway to achieving higher judicial appointment—can ask for feedback on what has been said about them.
	What about the woman who found that a factor sufficient to merit inclusion in the feedback she was given was that one of the higher judiciary had referred to her having poor dress sense? Is that a qualification for becoming a QC? Another woman was told that she had done something lamentable in court. In the feedback interview, she said that she had not done it and that the claim was not true. The response was, "Well, gossip creeps in sometimes." That is not very satisfactory.
	A woman was told that an affair that she had had 10 years before was still talked about by the judiciary and that she would not be welcome. They should not have been talking about the affair in the first place, but to talk about it 10 years later and to hold it against her as a reason for not appointing her was utterly absurd. Indeed, it is invidious. In the secret soundings, someone's marital status was said to be a problem— Sir Colin Campbell is discreet about exactly what that was. Someone else was described by a judge as not a leader of the profession, so they should not be appointed. What on earth does that mean? What we think of as a leader may not be what someone else thinks. If one does not obtain silk, one cannot get on to the High Court bench. Even if one manages to get through the gateway of discrimination once, one has to face it again from the same people next time around.

Edward Garnier: I am sure that those examples are interesting. Such cases are bad and ought not to have happened. We can all agree about that, but clearly such cases are not in the majority, bad as they are individually. I am concerned about the future. By and large, we agree that the judicial appointments commission is a good thing, although we need to worry about the detail. Can the hon. and learned Lady move away from the points that she was making about previous mistakes or bad policies and urge us to support the Bill in relation to the question of the Lord Chancellor or the supreme court? I fully sympathise with her concerns, but they will not help us to be persuaded about the overall merits of the Bill.

Vera Baird: I shudder at the utter complacency of that intervention, which suggests that those atrocities of injustice do not merit being dwelt on and that one should hurry up and get on with something else. I know that the hon. and learned Gentleman comes from a party that does not welcome women to its higher roles, but it is really time that the Conservatives appreciated the need to come into the modern era and to understand that if they—like this system—sanction discrimination against women, not many women will vote for them.
	When such things are known about how the process works, it is not surprising that many people hide their merits under a bushel. It is pretty well known that it is much harder for women, and certainly much harder for people from ethnic minorities, to get into the judiciary. Surely, it is obvious that the wider the pool of qualified people, the better is the calibre of the appointees.
	I have heard it argued, too—in fact, I am vaguely surprised that the hon. and learned Member for Harborough (Mr. Garnier) has not said it—that women have only fairly recently come to the Bar, so we cannot expect many of them to have filtered through to the top. That is certainly the Tory argument in the Lords to try to justify what occurs because of the discrimination to which I have referred. Women have been allowed at the Bar since 1922, so someone with 70 years' call could be present at the Bar at the moment.
	In 1992, when I was on the committee for justice, there were disproportionately too few women in high office for the number of women who had 15 to 20 years' call at the Bar then, and we are now 12 years on. So that is not an argument either—sheer discrimination is the argument, and I make no bones about saying that. I know senior people at the Bar who are black, who are female and who are gay who are better in many ways than some of the people who are currently on the bench, but they have not been put on to the bench. That is bound to be so, as long as there is discrimination.
	I applaud the introduction of a system that has every hope of finding the means of fairer selection, to draw from the array of diverse talent that is available and increase the calibre of our already respected judiciary. That is the last point that I want to make about the urgency of the judicial appointments commission, given what has been said by the Opposition. Our judiciary is very good, but we must make it better and this is how we can do so. At last, we might start to have selection for the judiciary on merit.
	I strongly support the Government's decision to establish a supreme court separate from the legislature and in place of the Appellate Committee of the House of Lords. It is undesirable for members of the highest court in the land to serve as members of the legislature. The Joint Committee on Human Rights said that the creation of the new supreme court and the disqualification of judges from sitting in Parliament makes it less likely that violations of the European convention will occur in practice. The hon. Member for Beaconsfield (Mr. Grieve) is right to say that there is controversy in legal circles about whether there is any problem under the convention, but surely the Committee is right to suggest that such violations would be less likely.
	Professor Jeffrey Jowell has said that the EU would not now accept for admission a nation that had its senior judges in its legislature. It is a marker of how far out of step we are with international thinking that we have allowed that obvious anomaly to linger so long. No Commonwealth country has adopted that curious structure, although many base their legal systems on ours. Canada, Australia, New Zealand and South Africa do not have working judges in their legislatures. The hon. and learned Member for Harborough referred to that aspect of the Bill as intellectual guff, suggesting that we should stand our individualistic ground and not be pulled into some sort of cheap version of a constitution by trying to resemble other people.

Edward Garnier: rose—

Vera Baird: Of course I will give the hon. and learned Gentleman a chance.

Edward Garnier: I thank the hon. and learned Lady for politely giving way. I am prepared to withstand her insults; I am prepared to withstand her arguments; but I am not prepared to accept her utter failure to understand that what I was talking about in relation to intellectual guff were the arguments proposed by the hon. Member for Ealing, Acton and Shepherd's Bush (Mr. Soley), who is no longer here. The hon. and learned Lady may make her arguments if she wishes, but will she please base them on what I said, not on what she thinks I said or on what she likes to assume all Tories, Conservatives or men say. It would have made for a better argument if she had listened to what I said, rather to what she thinks I said.

Vera Baird: The hon. and learned Gentleman must grow up or get out of the kitchen. He said that moving towards other constitutions by removing the judiciary from the legislature, as proposed by my hon. Friend the Member for Ealing, Acton and Shepherd's Bush (Mr. Soley), was intellectual guff. I do not mind learning from Canada, Australia, South Africa or any other Commonwealth jurisdiction. The hon. and learned Gentleman really must learn to control his words.
	The supreme court is a very good and important development. The ending of the system whereby members of the senior judiciary have seats in the Lords requires the establishment of an effective channel of communication between the judiciary and the legislature. There may well be times when the legislature wants directly to benefit from the experience and expertise of the judiciary.
	I support clause 6, which will enable the chief justice or his equivalent in Scotland and Northern Ireland to lay written representations before Parliament, and a parliamentary Committee through which the judiciary can maintain a dialogue with Parliament might also be appropriate. The Constitutional Affairs Committee has furthered such relationships. Its Chairman, the right hon. Member for Berwick-upon-Tweed (Mr. Beith), enjoys good relationships with members of the judiciary, who feel free to give evidence and make their views felt. I do not regard that as a problem, but it necessary to ensure that those channels exist now that the Law Lords will disappear. That change is good constitutionally, and good, rational channels of communication can be set up.
	There are also practical reasons for such a change. First, as the senior Law Lord has said, it makes the position much clearer, particularly for the public who find it difficult to understand and can muddle the role of the House of Lords as part of the legislature and as a court. Let us consider the Hunting Act 2004 for a moment. Deciding whether the Parliament Act 1949, by which the Act was passed, is lawful will ultimately be decided by the House of Lords. Do people understand that that judgment will be made by people who could have voted against the Hunting Bill in the first place because they technically remain members of the House of Lords? Let us consider how undesirable and confused that position is.
	Let me give two practical bits of evidence to show why the change is important. All the lawyers present and many others will know about the doctrine in Pepper v. Hart, which allows the courts to look at Hansard to understand the purpose of any legislation if it is ambiguous. I was involved in a House of Lords case in which a colleague and I were trying to persuade the House of Lords to consider Pepper v. Hart, but after suitable argument the House of Lords declined to do so. Those involved did not want to be influenced in their interpretation by what appeared in Hansard, but three of them were there when it was said, taking on the role of helping to sculpt the legislation, so presumably they were taking it seriously. Does that not make a pretty powerful point?
	In a further House of Lords case in which I was involved the then senior Law Lord came in after the luncheon adjournment and said that he had to make it clear that he had been lobbied on how he should vote on a part of a certain Bill. Just before lunch, I was taking their lordships through that Bill to try to make a point that the legislative thinking in the Act in force must have been A because the new Bill was carrying on that line. He was considering a Bill as a guide to interpreting another Act, while being lobbied politically to vote against it. That is an extraordinarily complicated and tortuous position for anyone to be in. Of course, the Law Lords can set aside what they hear in one role and compartmentalise their thinking—frankly, there are such good people in the House of Lords—but there is a danger that they can over-compensate for having heard what they feel they should not have heard.
	It is an extraordinarily unhappy situation in a whole variety of ways. I agree thoroughly with the senior Law Lord, Lord Bingham, that a modern, clear and quite separate supreme court is very important. About half the Law Lords feel unhappy to be in the Lords now. They think that it is an inappropriate location and they will not speak at all in debates. They therefore play no useful role.
	The House of Lords is an excellent judicial tribunal. It shows every sign of wanting to get to the right result. It does not, as many other courts do, merely play and argue with counsel; it argues among itself and is truly intellectually stimulated by an argument. This court can play a great role in our democracy whether it agrees with the Government or, as it has done recently, disagrees with them. It should be freed and clearly seen to be having that role, with due standing, its own building and due respect for its calibre being judged on the merits.
	I support Lord Bingham, Dame Brenda Hale and Lord Steyn who are in favour of the supreme court. I support Lord Woolf, who in evidence to the Select Committee about the Lord Chancellor as now configured, said:
	"I see no difficulty with a Government Minister exercising any of the functions assigned to the Secretary of State for Constitutional Affairs by the concordat. I do not consider that such a Minister requires any enhanced status or any particular title to enable him to exercise these functions."
	I agree with most of the people who have expressed support for the judicial appointments commission. This Bill was rightly described by the Lord Chief Justice in the other place as a
	"piece of great reforming legislation".
	I agree with him that
	"it will rank in importance with the great constitutional instruments of the past".—[Official Report, House of Lords, 7 December 2004; Vol. 667, c. 759.]

Douglas Hogg: I sympathise with the hon. and learned Member for Redcar (Vera Baird). Her voice is clearly failing her, and I sympathise, not least because I am in a similar position. I am rather glad that this is not one of those occasions—at least, I fancy not—when I shall have to shout down hon. Members, on either side of the House.
	There are clearly aspects of the Bill that can properly be supported. It would be rather surprising if that were not the case. It is not, in fact, the Bill that the Government first introduced in the other place. Indeed, I think that some 400 amendments were made there. I can therefore say that within this Bill, there are substantial aspects with which we can associate ourselves.
	The reasoned amendment moved by my hon. Friend the Member for Beaconsfield (Mr. Grieve) seems to encapsulate the criticism of the Bill remarkably well. It was echoed by my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer). I happen to think that the Bill is largely unnecessary; it is most certainly bureaucratic and expensive.
	I want to say something about the Lord Chancellor, something about the supreme court, something about the establishment of the judicial appointments commission and, briefly—Mr. Speaker made it plain that we could do this—something about the timetable motion.
	I do not know whether I have to declare an interest in that both my father and grandfather were Lord Chancellors. I certainly accept that the role of the Lord Chancellor has changed and is bound to change to take account of the change in circumstances. The role and office cannot be frozen in aspic. There have, in fact, been huge changes since my grandfather first came to this House in the 1920s and shortly afterwards went to the Lords as Lord Chancellor. I suppose that the most important change has been the desire for much greater openness than was then the case. Moreover—I think that this was important for the role of the Lord Chancellor in connection with appointments—there were far fewer judicial appointments in those days. I think that in my grandfather's day the King's bench division had 12 members; it has nearer 100 now. It is also true that in those days, the Lord Chancellor knew, or had access to those who knew, most of the people who were likely to be applicants for judicial office.
	The legal profession is now not very well represented in this place or in the other place. There are not many practising barristers in the House, and most of those who practise—I am one such—practise largely at the criminal Bar. It is therefore increasingly difficult for Governments to find either Attorneys-General or Lord Chancellors who can be appointed from Members who have served in this place. However, I happen to think that there are substantial advantages in having as one's Lord Chancellor or Attorney-General someone who has served in this place.
	I certainly accept that a number of the roles of the Lord Chancellor must change. I shall come to the judicial appointments commission, but I do not think that the Lord Chancellor should be responsible for appointments to judicial office. It would be a serious mistake, as a general proposition, for Lord Chancellors to sit judicially, although it is true that my father sat judicially on a number of occasions, and attached a very high importance to that role. He was probably wrong, but his judgments were, on the whole, rather good ones.
	That point does not address the role of the Lord Chancellor. That role is extremely important because over 10 years—in fact, more than that—there has been a whole flood of Home Office-driven legislation that has had a great impact on the rights and liberties of the citizen. I do not want to go over disputed ground about the previous Home Secretary. I regarded him, and I said so many times in this place, as a deeply illiberal Home Secretary. Much of the Home Office legislation that we are currently contemplating, and that we have contemplated in the lifetime of this Parliament, has been deeply illiberal and deeply authoritarian. I have opposed it and I deplore it— including, incidentally, the Identity Cards Bill, on which I had the misfortune to disagree with my own party's line.
	It is of critical importance that within the Government, there should be another source of influence and authority to set against the policies of the Home Office. If I ask myself where that person can be found, the answer is that he or she has to be found within the office of the Lord Chancellor. I cannot easily identify any other source of comparable influence and power. It is important therefore that the person who carries out the functions of the Lord Chancellor should have as much status as we can give him or her, and as much independence as well.
	I understand the argument of the hon. and learned Member for Redcar and of the hon. Lady for Stafford.

David Kidney: Hon. Gentleman.

Douglas Hogg: I am sorry—the hon. Gentleman.
	I understand the argument to the effect that it is a good thing for senior Secretaries of State to be in this place. In principle, I agree with that. However, I ask myself a different question: what is the likely relationship between the Secretary of State for Constitutional Affairs sitting in this House and the Home Secretary? The truth is that the Home Secretary will always prevail.
	When I look back, however, on the Lord Chancellors whom I have known or have been faintly acquainted with during my political life, who sat in another place, that has not been the case. On the Labour side, there were Lord Gardiner, Lord Elwyn-Jones and, of course, the previous occupant, Lord Irvine of Lairg. On the Conservative side—just to cite a few—there were Lord Kilmuir, Lord Dilhorne, Lord Mackay and, of course, my father. All these were people of a very considerable authority, which they could set against the power of the Home Secretary. Most of the debates—this goes to the question of accountability—occur within the Government, not on the Floor of either Chamber.
	My worry is that if we insist on the purist doctrine that Secretaries of State should sit in this House, we could be dealing with a Minister on the make—to adopt the phrase used by my hon. Friend the Member for Beaconsfield. There are huge advantages to there being a requirement for the Lord Chancellor to be a lawyer and a Member of the other place who is at the end of his or her political or judicial life, because he or she will thus have nothing to gain and nothing to fear.

Patrick Cormack: Is there not rather more to this than my right hon. and learned Friend suggests? There is not only the question of duelling with the Home Secretary when necessary; the Lord Chancellor is someone who can stand up to the Prime Minister, which is the most important thing of all.

Douglas Hogg: My hon. Friend is absolutely right. Not one of the Lord Chancellors whom I cited would have been described as a cheerful chappie. We do not want Lord Chancellors who are cheerful chappies, but people who bring real authority, pre-eminence and distinction to the role, because only in that way can an overbearing Home Secretary be faced down.
	I hope that the House, in its Committee form, will insist that the Lord Chancellor be a lawyer, that the role of the Secretary of State for Constitutional Affairs should always be designated as one that the Lord Chancellor should perform, and that the Lord Chancellor should be a Member of the other place, so that he or she will by then be beyond fear or favour. We need to make every attempt to reinforce the status of the Lord Chancellor.
	Like so much done by the Government, the words "supreme court" mislead. The title suggests a genuine separation of powers, and in particular, although this is not stated, the power to strike down primary legislation. As a general proposition—we will see what happens during the challenge to the Hunting Act 2004—the supreme court will not have the power to strike down primary legislation. In truth, the supreme court as described in the Bill will largely be the Judicial Committee as it now sits, but sitting in a different, more expensive place and underpinned by an extremely expensive infrastructure. As my right hon. Friend the Member for Suffolk, Coastal implied, if it is not broke, why seek to mend it? There is no overwhelming requirement for change, so I would not change the structure.
	I regret the prohibition on members of the supreme court from speaking in the other place, although I am assuming that we will not have a wholly reformed other place. I hesitate to say this in the presence of my hon. Friend the Member for South Staffordshire (Sir Patrick Cormack), but I am in favour of a wholly or largely elected second chamber.

Patrick Cormack: Very unsound.

Douglas Hogg: My hon. Friend thinks that my point is unsound, but he and I have always disagreed about that.
	Within the parameters of the other place as it now is, I want members of the supreme court to be able to speak. I appreciate that Lord Bingham has constrained the circumstances in which such people should speak, and that there is a division of opinion about that. It is certainly the case that the Law Lords should be careful not to express themselves in a partisan manner. They must always express themselves temperately and bear in mind the fact that they might have to adjudicate on matters that are discussed in the other place.
	Of all those in this House or in the other place with judicial experience, the Law Lords have the most current expertise across the broad spectrum of legal issues that Parliament must discuss, ranging from the complex commercial questions to more humdrum issues of family or criminal law. They have knowledge of great constitutional issues, such as the impact of the European convention on human rights on the way in which the courts operate. The truth is that the Law Lords have greater current expertise than anyone else, because as I have already said, most hon. Members who are practising barristers or solicitors practise at the criminal Bar. Although there are competent barristers in the other place, they tend to have rather specialised practices. For example, Lord Grabiner, for whom I have high regard, has a specialised commercial practice. Of course if we rely on ex-Law Lords, we are dealing with individuals with experience that is not quite as current as one might wish. I greatly regret the prohibition on justices of the supreme court from speaking in the other place, and I hope that the House, in its Committee form, will reconsider that.
	I turn to the judicial appointments commission. The role of appointment should not be performed by the Lord Chancellor or his officials, although I accept that there was a jolly good case for that in the days when the Lord Chancellor knew most of the applicants, or could at least have a private word with the heads of division who did. However, those days have gone and one cannot hark back to them. I agree with the principle of the judicial appointments commission. It is undesirable for the Lord Chancellor's officials to perform the functions that were historically performed by the Lord Chancellor, because they are not well placed to determine the merits of a, b or c. However, we have chosen one of the most remarkably bureaucratic and complicated ways of making appointments that I have ever read. There is a powerful case for depriving the Minister—or Lord Chancellor—of any residual power and giving the power exclusively to the commission, but that is a matter for debate.
	I have two real worries about the role of the ombudsman. I doubt whether people who are dissatisfied with the decisions of the judicial appointments commission should have the right to apply to an ombudsman for remedy. I remark in passing that Back Benchers with desires that remain unfulfilled, or Ministers who are disgruntled because they have been passed over or sacked—I am casting no personal aspersions about any hon. Member in the Chamber—do not have the right to appeal to an ombudsman.
	Let us consider what is being suggested. If people were to make a complaint about process, I wonder whether the cost and inconvenience of the ombudsman would be proportionate. Indeed, the matter could probably be raised with the parliamentary ombudsman as is. Is it suggested that the ombudsman should be able to express a view on the merits of an appointment? At that point one enters a difficult area, because when one makes appointments of any kind, one's judgment is often subjective. One might have real doubts about a person's integrity, competence, good manners or judicial temperament. It might be difficult to make such subjective judgments stand up evidentially, but they may none the less be real and well founded. I fear that if we set up a process that allows people to challenge the merits of judicial appointment, we will find ourselves landed with many appointees who should not be appointed, because the commission will play for safety and rely only on reasons that can be evidenced.
	The question of merit and diversity is related to that matter, and although it is a small point, it causes me considerable concern. I entirely endorse a point made by my hon. Friend the Member for Beaconsfield: merit should be the only criterion for appointments. By all means let us enlarge the pool as much as possible. I agree that it has been artificially constrained for many years. We should have a wide pool, but by goodness, let us stick to the criterion of merit and no other. The power that the Bill gives the Minister, or Lord Chancellor, to give guidance—for example as to diversity—could be misused.
	As to disciplinary functions, this is an enabling Bill. It enables the Minister, or Lord Chancellor, to set out processes for disciplining members of the judiciary. Again I preach caution; we need to look at this more closely in Committee. It is perfectly true—the hon. and learned Member for Redcar knows this as well as I do—that historically there have been some pretty eccentric folk on the bench. In my professional lifetime I have known some, and even since I went back to the Bar in 1997 I have come across one or two very odd figures who probably should not be there. I hope that the judicial appointments commission will prevent that from happening. In any event, peer pressure and the word from the senior judiciary can be brought to bear.
	I would, however, be very sorry if a disciplinary process curbed the independence of the judiciary. The hon. and learned Lady adduced from one Minister— I forget which one—the fact that each year there are between 1,000 and 1,200 complaints about the judiciary. We all know from our constituency experience that litigants, whether male or female, are frequently dissatisfied by the result. Very often they express their dissatisfaction by saying, "It was unfair," or, "He"—or she—"behaved badly. It was judicial misconduct." I do not want to see the judiciary cowed in any way. We look to it, in part at least, to defend the citizen against the over-mighty Government. Let us then be cautious about the disciplinary process.
	I turn briefly to the timetable. Mr. Speaker was good enough to say that we could speak about it, provided that we did not go on too long—and my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) and my right hon. Friend the Member for Suffolk, Coastal have made the points that I would have made. This is a very important Bill. On the Floor of the House, where these things are traditionally discussed, we will be able to discuss only fragments of the Bill, and those fragments have been selected for us not by discussion between Front-Bench Members, but by the proposal of Ministers.
	I acquit the Under-Secretary of State of responsibility. I suppose that he did not know; it was not his decision. [Interruption.] No, I see, it was not his decision. I do not blame him; he is only an Under-Secretary. However, it is not right. If the proceedings were to be timetabled, there ought to have been discussion between Front-Bench Members of all the major parties and the minority parties. The House is being impoverished by the process. Not only that, but democracy itself is being impoverished. I hope that the House will rally, and vote, against the timetable motion.

Alan Beith: I am not sure that today's debate is a very good example of the stewardship of time. I like to think that we could have more time for these proceedings on the Floor of the House, but with discipline in how efficiently we used it to ensure that a number of important detailed points are considered.
	I want mainly to refer to what the Constitutional Affairs Committee has said and done on the matter, and the extent to which our concerns have so far been met. As several hon. Members have said, the problems go back to the way that the matter was introduced, as a back-of-the-envelope decision in a reshuffle. When one is reshuffling one's Ministers, one does not call them in a fortnight before and say, "I'm planning to do this. What do you think? Will you get your officials to do me a paper about it?" The previous Lord Chancellor was no doubt told at 3 o'clock in the afternoon that his services were no longer required and that his advice on the proposals or that of his officials was not needed.
	That is a hopeless way to embark on constitutional reform and it was particularly galling for those of us who broadly support the measures that the Government want to take. They managed to convey the impression that the proposals were designed to weaken and politicise the judiciary, which is precisely the reverse of the intention and, I hope, of the effect. The way that the matter was introduced made it much more difficult to argue for the reforms in principle and then get the detail right.
	The problems that the Bill is designed to solve are primarily ones of principle and perception, not of practice, except in judicial appointments, to which several references have been made. I welcome the agreement that has now emerged on the necessity for a form of judicial appointments commission. Even in that case, no one is arguing that the most senior judicial appointments in recent years have been other than very good, or that the quality of our judiciary is not envied around the world, but we can still make improvements and there are certainly people who are excluded from the judiciary.
	That was the main motivation for changing the system in Scotland, which took on a judicial appointments committee under the guidance of my friend and former parliamentary colleague, the Deputy First Minister, then the Justice Minister, Jim Wallace. That was partly because there was a feeling in many parts of the Scottish legal system that people were overlooked for judicial appointments because they were not part of the Edinburgh mafia, as it tends to be called, and partly because Scotland had a more recent history of political appointments to the judiciary than England and Wales. When we examined the system in an earlier report, we found that it was working reasonably well and were hopeful that an appointments commission, admittedly on the much larger scale required for England and Wales, would be of real benefit.
	When the reforms were announced, the Select Committee set about working and reporting on them, building on the work that we had already done on the judicial appointments commission. Most of the Committee's recommendations have been taken up by the Government, some willingly, some reluctantly in response to further pressure in the Lords and some on the basis of defeats in the Lords, a number of which the Government do not propose to reverse. Some of what we were saying was bolstered by the concordat between the Lord Chief Justice and the Lord Chancellor, which the hon. and learned Member for Redcar (Vera Baird) said was a successful piece of negotiation. Indeed, it has been referred to with a degree of envy by the Lords Chief Justice of several other countries as an impressive example of how to play one's cards effectively. The Lord Chief Justice did us all a service by getting certain things firmly clarified and accepted on all sides.
	Among the things that we said was that the Bill is so important that it should be introduced as draft legislation and given proper consideration. The Government rejected that, but the objective was achieved by the decision of the House of Lords to set up a Select Committee and the decision alongside that, by all parties, to allow the Bill to be carried over into this Session. If that had not happened, it would have been rushed through, if the Lords had agreed at all, in the previous Session, and that would have been bad news. I have to say that I disagreed with my Front-Bench colleagues on that. In their determination to support the proposals, they felt unhappy about supporting the motion to refer the Bill to a Select Committee. The end result of the process is that the Bill has had much better consideration and can still be introduced within a reasonable time.
	Another recommendation that we made related to the fact that the court is partly a United Kingdom court and partly the final appeal court in the separate jurisdictions of Scotland and Northern Ireland. None of that had been thought through when the proposals were first produced. I do not think that a moment's consideration had been given to that. We asked many questions and produced a lot of detailed information, and, to be fair to them, the Government responded fully, made significant amendments to the Bill and clarified a number of matters crucial to Scotland and significant also in Northern Ireland.
	We also argued not only that supreme court judges should not be in the Lords—that is certainly my view—but that if there was any prospect of retired judges being appointed to the House of Lords while it continues in its present form, either all of them should be so appointed, or none of them. There should be no question of the Government picking those supreme court judges that they liked for preferment to the House of Lords. That would be undesirable and the Government accepted our view on that, too.
	We stressed heavily the importance of the court's independence, including its financial independence. We felt that its financial and operational independence needed to be guaranteed and that its budget needed to be secure. We looked at examples, and at Australia in particular, to see how that could be done. To a large extent, that has been accepted. The Department for Constitutional Affairs is still involved, but the chief executive will be an accounting officer in his own right and several detailed improvements have gone some way to meet the Committee's recommendations.
	We also felt strongly that the court should not operate until it had its own premises. The problem of perception could not be dealt with by having roughly the same people sitting in the same building—the House of Lords—being served by the same staff, and by saying that some new supreme court had been created. We therefore welcome the fact that the Government accepted that the court needs its own building before it can start work properly. My view was that, if everything else could be settled, Middlesex Guildhall was the right place. I disagreed with Lord Bingham on that, but he is getting much of what he wants anyway, so we can reasonable argue with him on the merits of which building to use.
	The Committee felt that the Lord Chief Justice should be primarily responsible for discipline and that that should not be a role for the new-style Lord Chancellor or whatever kind of Minister was to come. That, too, has largely been accepted and to a significant extent was sorted out in the concordat.
	We strongly recommended an appointments commission, but even we did not anticipate how many versions of judicial appointment would emerge at the end of the process. Effectively, we have a three-tier process—an appointments system for the supreme court, an appointments system for the higher judiciary and an appointments system for all the lower ranks of the judiciary. For the first two, judges are very prominent indeed. Again, the Lord Chief Justice's negotiating skills played a significant part. That will have met, to a degree, the concern of the majority of my Committee that the commission should be chaired by a judge—not a view that I shared. It is a rare occasion on which my view is defeated by a Committee that I chair and a situation that I try at all times to avoid.
	The Committee expressed some strong views on the role of Lord Chancellor. We said that part of that role
	"is the protection of the judiciary from political pressure in Cabinet and, when necessary, in public."
	The previous Lord Chancellor was prepared to act in such a way, and did so on one occasion in front of the Committee. In paragraph 13 of the report, we said:
	"There is a radical difference between on the one hand a Lord Chancellor, who as a judge is bound by a judicial oath, who has a special constitutional importance enjoyed by no other member of the Cabinet and who is usually at the end of his career (and thus without temptations associated with possible advancement) and on the other hand a minister who is a full-time politician, who is not bound by any judicial oath and who may be a middle-ranking or junior member of the Cabinet with hopes of future promotion."
	The Minister smiles—whether he sees himself in that position in future, I do not know.
	The Committee felt strongly that such independence was important and we were regularly confirmed in our views by outbursts from Ministers that seemed to some of us to be somewhat threatening towards the judiciary. There was a classic example of that from the previous Home Secretary, who when addressing the Police Federation—a good occasion on which to get a cheer from the gallery—said, "We only want judges who will help us to do our job." That was not a good basis on which to set out the proposals. It further underlined—certainly in my mind—the importance of retaining a Minister who accepted responsibility in Cabinet for sometimes slapping down other Ministers who did not recognise the importance of judicial independence.
	We anticipated something that the Government did not anticipate: how important the issue had become. The Government did not seem to think it terribly significant, even as the consultation went on, but it became clear that among members of the judiciary in particular the status of Lord Chancellor was regarded as an important safeguard for their position. We recommended that the office of Lord Chancellor should remain, at least for the time being, in its more restricted form—shorn of judicial appointments and, almost certainly, of responsibility for chairing proceedings in the House of Lords. I welcomed the Government's ultimate acceptance of that when it came by way of amendment in the Lords.
	I personally do not think that it is essential that the Lord Chancellor should either be in the House of Lords or be a lawyer, but I am still concerned about how we achieve the Committee's objective of ensuring that the Lord Chancellor is not awaiting further political advancement and has the authority to challenge other Ministers on this most fundamental issue. I can think of many people who could do the job who are neither lawyers nor Members of the House of Lords, so I am not especially attracted by the amendments that their lordships passed as a result, to a large extent, of such motivation. Ministers must think further about the matter, so that we can ensure that the person who holds the office of Lord Chancellor and is responsible for relations with the judiciary has the status, authority and independence that he needs to be able to do that job.
	I shall mention one other area that has not attracted much attention. The proposals on ecclesiastical appointments arose out of the original intention to remove the Lord Chancellor altogether. At the end of the day, the Government decided to move the appointments to the Crown, thus allowing them to continue to be made by the same people who are making them at the moment in No. 10 Downing street. That reflected the evidence session that the Committee held on the subject. We did not make any recommendations, but we had an interesting evidence session in which much of the weight of the evidence was to the effect, "Do not disturb this system, it is working very well." Those who wanted to change it could not agree on what to change it to. The argument that the matter should be left in the hands of public servants, who were unusually highly commended in the Committee's proceedings, clearly weighed with the Government.
	On a large number of issues, the Committee's work was well justified, because it influenced the course of events. Many of our recommendations have been accepted, either willingly or slightly unwillingly by the Government, and we shall consider what happens in Standing Committee with the hope of reporting to the House prior to Report any further conclusions that we might reach.

Annabelle Ewing: I preface my comments by saying for the record that, like the hon. Member for Stafford (Mr. Kidney), I am a non-practising solicitor, albeit of the Scottish variety.
	I shall focus my remarks on the detail of part 3, which deals with the proposals for the new so-called United Kingdom supreme court. Much has been said about the way in which the proposals came forth. It is certainly true that their timing was the direct result of the botched reshuffle in June 2003. As the right hon. Member for Berwick-upon-Tweed (Mr. Beith) said, at the time of the announcement of the creation of a supreme court, it had been forgotten that final appellate civil jurisdiction—appeals in civil matters—still lay with the House of Lords. That fundamental issue had been entirely forgotten down here in Westminster.
	There was no prior consultation with the Scottish Parliament and Scottish Ministers, which was a breach of the devolution concordats, which exist to deal, inter alia, with issues such as the important proposed changes to devolved areas of Scots law. At the time of the furore in Scotland when the proposals were first announced, the Scottish First Minister was asked his views on the failure on the part of the Prime Minister and the Westminster Parliament to consult him. He said simply that there was "absolutely no reason whatsoever" for the Prime Minister to have consulted him on such a major constitutional change. That says an awful lot about the limited lengths to which Scotland's First Minister will go to stand up for the Scotland's interests, a key aspect of which is the independence of the Scottish legal system.
	The substance of the proposals has caused much controversy in Scotland. On the one hand, the proposals represent a missed opportunity to end the 18th-century anomaly whereby final appellate jurisdiction in civil cases lies south of the border, while on the other, serious questions remain about the compatibility of the proposals with the founding constitutional document of the Union between Scotland and England—the 1707 treaty of Union. On the first point—that an opportunity has been missed to repatriate to Scotland final appeals in civil cases—in post-devolution Scotland, where the Scottish Parliament has jurisdiction over both criminal and civil law matters, why is it deemed necessary, desirable or logical that final appeal in civil cases lie south of the border? There has never been a final appeal to the House of Lords in criminal cases in Scotland and it does not seem sensible to continue the anomaly in Scottish civil law. That is especially important when seen in the context of the specific proposals made in the Bill, which states—probably for the first time in statute—that the final judgments of the new supreme court are not to be binding outwith their respective jurisdictions. It has been said that the judgments will enjoy persuasive effect, but if they are not to be binding outwith their respective jurisdictions, why on earth do we need to go to London to have a final appeal heard in a Scottish civil law case? That makes no sense in post-devolution Scotland.
	The fact that civil appeals lie with the House of Lords is simply an historical quirk. Now, in 2005, we have the ideal opportunity to end the anomaly and repatriate to Scotland final appellate jurisdiction in civil cases. That view has been echoed by many in Scotland both within and outwith legal circles. Professor Black, the renowned and respected professor of Scots law at Edinburgh university, described the present system of sending final appeals in civil cases to London as "crazy". He added:
	"I've always thought that civil appeals should be decided in Scottish courts . . . A UK supreme court should only be for constitutional issues".
	I agree entirely, with the proviso that, when Scotland reclaims her independence, there will be no need for so-called devolution issues to be dealt with by a UK constitutional court—the UK supreme court—which is to take over jurisdiction in such matters from the Judicial Committee of the Privy Council. When Scotland reclaims her independence, the writ of the UK supreme court will not run in Scotland.

Alan Beith: Presumably, the hon. Lady's proposal is for a further tier of appeal in the Scottish system to replace the supreme court.

Annabelle Ewing: Because Scottish law is devolved to the Scottish Parliament, it would be for the Scottish Parliament to decide whether and in what way any appeal in civil matters should lie from the inner house of the Court of Session. I am sure that it is not beyond the Scottish Parliament's wit to come up with a satisfactory solution.
	I mentioned concerns about the compatibility of the proposals with the treaty of Union. A post facto consultation process was embarked upon but, in effect, the decisions had already been taken: the consultation was not on whether appeals should lie south of the border, but in what form the appeals should be made, whether there should be an automatic right of appeal or leave given to appeal, and so on. The fundamental issue was not addressed because the Government had already made their decisions. During that consultation, concerns were expressed by senior Scottish Law Lords, including Lord Hope of Craighead. The Faculty of Advocates in Scotland made a detailed submission, which was a devastating critique of the consultation document. I am sure that the Minister is aware of that and that he read it assiduously. However, if the Bill is not to fall foul of the treaty of Union, any appeal in a Scottish case south of the border must be heard in a court that is entirely separate and distinct from the English legal system. Having seen the detail of the proposals on the supreme court in the Bill, I am not satisfied that the requirements in the treaty of Union have been met. Key concerns about the funding arrangements, as well as the administration and operation of the supreme court, were raised by the Faculty of Advocates.
	The funding of the supreme court will come out of the overall budget of the Department for Constitutional Affairs. When I asked the Minister about that, he simply said that the DCA was a UK Government Department. That was not the best answer to give, as all Whitehall Departments for the Westminster Parliament are viewed as UK Government Departments, and the DCA has little writ in Scotland, given that it is concerned mostly with the justice system in England and Wales. He therefore did not convincingly rebut my point. As for the administration of the new supreme court, we know from the Bill that its chief executive will be appointed by the successor to the Lord Chancellor—a DCA Minister—who will retain some functions relating to the workings of the judiciary in England and Wales. It cannot be argued, therefore, that the supreme court is entirely separate and distinct in all aspects from the English legal system, which raises serious questions about whether the Bill's proposals for a UK supreme court are compatible with the founding constitutional document that thirls Scotland to control from London.
	In conclusion, we have heard much tonight about the separation of powers which, for the record, I favour. I also favour a written constitution and a Bill of Rights. However, the key provisions of the Constitutional Reform Bill on the UK supreme court are unacceptable to my party not only because they represent a missed opportunity to end an 18th-century anomaly and repatriate final appellate jurisdiction in civil cases to Scotland but, given that they provide for a system that is not entirely separate and distinct from the English legal system, because they impinge on the integrity of Scots law. I was elected to Westminster to stand up for the interests of my country and, as a result, I cannot vote for a Bill that will do down the integrity of the legal system of Scotland.

Patrick Cormack: I am sure that the hon. Member for Perth (Annabelle Ewing) will forgive me if I do not follow her Scottish remarks in detail. Her speech and that of the right hon. Member for Berwick-upon-Tweed (Mr. Beith) were extremely fine, as they were of an exemplary length, and I shall try to emulate that.
	I begin with an apology to the House and an expression of regret. I apologise for missing some speeches. As you know, Mr. Deputy Speaker, I am a member of the House of Commons Commission, and I had to attend an important meeting with Mr. Speaker. I was therefore undertaking House business, so I hope that colleagues will understand why I missed one or two speeches. I regret the fact that few Members are present in the Chamber to debate an issue of such extraordinary importance. It is particularly regrettable that the Government have run out of speakers.
	Those of us who care about the Chamber—the forum and cockpit of the nation—will have to address this issue extremely carefully. What we need in the new Parliament—I suppose, as most of us do, that the present Parliament is nearly at its end—is a real determination to have the Chamber populated for major debates. When I first entered the House, and for many years afterwards, any major debate, especially a major constitutional debate, would have seen the Benches if not packed, at least respectably full throughout.
	The Bill began in a most unfortunate way, as many right hon. and hon. Members have said. It was classic back-of-the-envelope stuff. A major constitutional reform of this nature should have been preceded by a White Paper, and preferably by a Green Paper before that. There should have been a draft Bill for both Houses to consider in detail. The proposals should have been clear, coherent and deliverable. What happened in the wake of that extraordinary reshuffle a couple of years ago did none of those things. So we were left, especially in the House of Lords, with a dog's breakfast.
	We all owe an enormous debt of gratitude to the other place for the way in which it has tackled the Bill. It went through its own special procedures and it has now produced something for us that is, to a degree, coherent. We owe also a particular debt of gratitude to the Lord Chief Justice. The hon. and learned Member for Redcar (Vera Baird) has cited him on a number of occasions. I do not think that his enthusiasm was necessarily quite as great as she said, but he has behaved in an impeccably constitutional manner. Like the famous Irishman in the story, he would not have started there. However, confronted with what was a potential constitutional crisis he brought to bear his patience, his wisdom, his determination and his eloquence. He has played a major part in creating the Bill that is before us. It is very much a curate's egg of a Bill, in that it is good in parts.

Edward Garnier: Does my hon. Friend accept that one of the reasons why the Lord Chief Justice was able to be so effective in influencing this debate is because he has been able to speak and participate in the House of Lords?

Patrick Cormack: My hon. and learned Friend anticipates my arguments to some degree. Had we not had Law Lords in the House of Lords and had we not had the Lord Chief Justice in that place, goodness knows where we would have been.
	I am sorry that the right hon. Member for Berwick-upon-Tweed has had to leave the Chamber briefly. He gave an admirable exposition of his Committee's views, especially in regard to the office of Lord Chancellor. He slightly distanced himself from those views, but when he said how crucial it was that the Lord Chancellor should be a figure of eminence, somebody who was not in any way influenced by his own political ambition, he described the sort of figure that the Lord Chancellor, as envisaged in the Bill as it stands, would be.
	Unlike the hon. and learned Member for Redcar, to whom I listened with great respect—as always, she spoke persuasively and eloquently—I accept the logic of the argument that the Lord Chancellor should be in the House of Lords and should be a lawyer. In particular, he or she should be in the House of Lords. I would be delighted to see a woman Chancellor. We have had a woman Speaker and a woman Prime Minister, so why should we not have a woman Lord Chancellor—somebody who could do that job?
	We need someone who is no longer motivated by political ambition and who, as my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) said—or my noble Friend—can stand up to the Home Secretary and, as I said in an intervention, stand up to the Prime Minister, as well. Looking back over my years in the House, I can think of a number of Lords Chancellors who did that. I think of my dear friend Lord Elwyn-Jones, for instance, from the other side of the House. I think of the last Conservative Lord Chancellor, Lord Mackay, whose quiet, avuncular wit, but firm authority, enabled him to say things that others perhaps could not say. Of course I also think of the wonderfully rumbustious and very wise Lord Hailsham—and there are others.
	If the Government of the day have a large majority, we need someone in the Cabinet who can stand up to the Prime Minister. It was Lord Hailsham who coined the phrase "the elected dictatorship". In whichever part of the House we sit, we must all accept that when a Government have an enormous majority, as the present Government enjoy, they can do pretty well what they want and what the Prime Minister wants. I was critical in supporting Lord Pym, who was sacked for his pains, when he spoke of not wanting too big a majority in 1983. Things began to unravel for the Conservative Government when the overall majority of 140 or so was attained. I believe that many poor and even bad decisions have been made by the present Government mainly because of their huge majority.
	In such a situation, someone at the Cabinet table who enjoys enormous respect, who is not ambitious, but who has an innate authority and who can speak up, is a great safeguard of many of our constitutional liberties. So yes, I am perfectly happy to see the Lord Chancellor shorn of some of his powers and responsibilities, as the Bill proposes, but I want the Lord Chancellor to be a man or woman of real authority, transparent integrity, wisdom and experience. I accept that it may not be necessary for the Lord Chancellor to be a lawyer, although I would prefer that, but he must have the attributes that I described.
	I very much hope that as the Bill goes through the House there will be no attempt to take out those parts of the Lords amendments. I am glad that the office of Lord Chancellor, ancient as it is—it has changed many times over the centuries; it used always to be a bishop—is not be removed from our constitutional history.

Vera Baird: I am following with great interest what the hon. Gentleman is saying and I agree wholeheartedly that the Lord Chancellor needs to be a person of substantial integrity and authority, for the very reasons that the hon. Gentleman set out, but it is difficult to put that in legislation. Why does he think that it a sufficient proxy to say that the Lord Chancellor should be a lawyer and a peer?

Patrick Cormack: I said that I had a slight preference—perhaps it is a prejudice—that the Lord Chancellor should be a lawyer. Why should he be a peer? I address that directly. I am one of those who believe in the House of Lords more or less as it exists. I do not want to see an elected second Chamber. One of the great attributes of a senior peer is that he or she has no fear or favour as regards party considerations. It is important that the Lord Chancellor is somebody who is not dependent upon patronage, who is there—not in the office of Lord Chancellor, of course—for life, and who brings a great deal of experience from previous jobs to the office of Lord Chancellor.
	We are speaking in the context of our present parliamentary system. I have made my position plain. Unlike my right hon. and learned Friend the Member for Sleaford and North Hykeham, I do not want to change it. In our present system, it is far better to have the Lord Chancellor in that place than in this place. Most hon. Members who aspire to high office have ambition. Ambition is not always a grievous fault, as Mark Antony satirically had it. Ambition is a decent motivating force, but it is not the best motivating force of a Lord Chancellor.

Edward Garnier: May I provide another reason and see whether it attracts my hon. Friend? The Lord Chancellor not only has to command the respect of his Cabinet colleagues, particularly the Prime Minister and the Home Secretary, for the reasons given by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), but in so far as he is the voice of the judiciary in Cabinet and of the legal system, he must also command the respect of those whom he is representing from that constituency. My fear is that a Minister in the Commons, who was seen to be looking at the job as merely a stepping stone to greater things, would not command the respect that would be required of him in the judiciary and the legal profession as a whole. That is open to criticism and to argument, but it is certainly a reason that is worth considering.

Patrick Cormack: It is. My hon. and learned Friend makes an extremely valid point, and it is one with which I find myself in very real sympathy. The Lord Chancellor of the day, even if he is not of the judiciary, should be regarded by it as a peer in every sense; somebody for whom it holds respect; somebody whom it can look up to. I beg the Minister not to close the door when he is talking about those amendments that would require the Lord Chancellor not only to remain as a title, but to be a Minister in the other place—and, frankly, preferably, a lawyer. Even the hon. and learned Member for Redcar, who does not particularly want the holder of the office to be a lawyer, admitted that the next three or four probably would be.
	I conclude by referring, as others have, to the manner in which the Government are presenting the Bill to the House. There was quite a little uproar this afternoon, in which I took part, over the Bill's timetabling. I am one of those who do not like the automatic guillotining of Bills, which is what we have when we have a programme motion at the end of every Second Reading. We now have the programme motions without any debate, which was why Mr. Speaker, when I raised the point of order, said that it was entirely permissible to make some of these points on Second Reading. We learned to my horror and, frankly, to my disgust today that there had been no agreement between the three major parties, let alone the minor parties, on how the Bill should be taken.
	It is the tradition that constitutional Bills are taken on the Floor of the House, and that is a good tradition, not only because it focuses the nation's attention on this Chamber, but because every Member of this Chamber can come and take part in debates on amendments when it is appropriate to do so. The whole of the Bill should have been taken on the Floor of this House of Commons. However, real insult has been added to parliamentary injury by the way in which the Bill has been carved up, because whatever the Minister's extremely amiable and very patient ministerial colleague might have said this afternoon, and indeed his hon. Friend admitted as much during an intervention earlier this evening, the fact is that it is the Government who have broken off negotiations with other parties and who have decided how the Bill should be divided up and which aspects debated on the Floor and which in Committee.
	That is bad. It shows a disdain for and a disregard of Parliament, which is insulting to us all—not just those who sit on the Opposition Benches, but those who sit on the Government Benches as well. Although there are not many of them here tonight, there is one who knows what it is like to sit on the Opposition Benches. If we have any length of time in this place, we all learn what it is like to sit on the Opposition Benches. Parliament itself, holding the Executive to account as it must, must be allowed the leeway to do so by the way in which legislation is considered.
	In the beginning, I said that the Bill should have been started as draft legislation, but that did not happen—this is where we are; I wish that we were not. As we are here, however, the Government should relent and say that the whole of the Bill will be considered in a Committee of the whole House. That would save the Government time on Report and would not add a great deal of time to the consideration of the Bill. In so doing, the Government would earn back a little of the respect that they have forfeited from all who hold the parliamentary system in high regard.

David Heathcoat-Amory: I am pleased to follow my hon. Friend the Member for South Staffordshire (Sir Patrick Cormack). I entirely agree with the wise remarks about how the Government have presented the Bill to the House. For that reason, I will not dwell on those points, except to endorse them wholeheartedly.
	I am drawn to this debate not as a lawyer, but as part of the lay element—I have always regarded constitutional matters as being of supreme importance. The longer that I am a Member of this House, the more regard I have for constitutional issues, because they concern where power resides in the country, who exercises it and who is accountable, and to whom those people are accountable, how they can be removed and how they are appointed. Those issues transcend the temporary decisions of passing majorities in this House and lay down the ground rules under which future decisions will be taken.
	What I have just said is disguised by the fact that we do not have a written constitution in this country. If we were in the United States, Australia, India or anywhere else with a written constitution, it would almost be certain that the issues before us today would be subject to constitutional amendments and would therefore require super majorities in the relevant parliamentary Houses and possibly a referendum too.
	Under the unwritten British constitution, however, no Parliament can bind its successors, and no law or Act, whether constitutional or otherwise, is entrenched. Some disagree with that statement and claim that the Bill of Rights after the Glorious Revolution has an overwhelming status in our constitutional history to which we must refer, but the Dicey doctrine holds sway among most constitutional lawyers in holding that there is legally no such thing as a constitutional Bill and that any future Parliament may therefore repeal any previous Act, whether it is constitutional or not. That is the British system and the British way. It follows that the Government of the day may introduce or amend any Bill that they like in exactly the same way as any other legislation.
	That is the legal position, but politically successive Governments have approached those matters with a good deal of caution and forethought, and even with humility. That makes it doubly disappointing that, in promoting the Bill, the Government have, as my hon. Friend the Member for South Staffordshire said, denied us the possibility of debating which clauses should be decided on the Floor of the House and which should be decided Upstairs. That is a monstrous denial of parliamentary powers and rights.
	I have something even more troubling to say: the Government are serial offenders on constitutional reform and seem to regard the British constitution as something to be tinkered with as a matter of passing convenience. They lurch from one ill-thought-out proposal to another without any real understanding or analysis of the underlying principles and accumulated wisdom that is personified in that collection of statutes and conventions that we call the British constitution. They resemble a blind monkey trying to do a jigsaw puzzle. We have had the botched and uncompleted reform of the House of Lords; the fiasco over regional assemblies; and the proposed European constitution, which will be this country's written constitution if the Government get their way, and is being introduced without any plan or any real understanding of the implications of what is at stake.
	So we come to the attempt to abolish the office of Lord Chancellor, which, as we have heard several times today, was done as part of a reshuffle. The office of Lord Chancellor is older than this Parliament, and it is outrageous that the temporary Prime Minister of the day should, as a matter of passing convenience, announce its abolition as part of a reshuffle without any consultation. There was no White Paper, nor were the Queen, the senior judiciary, the Cabinet or the House consulted or informed in any way. There was nothing about it in the Labour manifesto; no mandate whatsoever exists for these reforms. It was simply a way of conducting an awkward reshuffle, getting rid of one friend of the Prime Minister and replacing him with another.
	That is a shameful way of approaching matters of such importance, particularly given that as recently as 2003—the year of the notorious reshuffle—the Government defended the position of Lord Chancellor, saying that that office,
	"straddling as it does the three parts of the constitution, makes its holder uniquely placed to protect the interests of each part against the demands of the others. In particular, it both upholds judicial independence and mediates between the executive and the judiciary when occasion for controversy arises."—[Official Report, House of Lords, 7 March 2003; Vol. 646, c. 1095]
	What happened in the three months between that statement and the proposed abolition of that ancient office? Of course, those original proposals have been heavily amended in another place, which I congratulate on its struggle to get the Government to rethink their proposals, and I hope that they will accept most of the amendments that were forced on them or agreed to. However, the proposals remain radical.
	The Government now have a new way of justifying the Bill. Many hon. Members referred to the separation of powers. Of course, I understand that the doctrine of separation is reflected in various parts of our constitution. Power should not reside in one person or one institution, and there must be a check and a balance on the exercise of all powers. However, it is a completely different matter to advance a pure separation of powers, which does not exist under the British constitution and never has. This House is a standing affront to the pure separation of powers. Of course, in some respects we are a legislature, because we pass laws, enact legislation and check the Executive, but we also support the Executive, who are among us and arise from us. One of the duties of the House of Commons is to support the Executive of the day. That commingling of different parts of Government is established in the House that is debating this Bill.
	So it is with the judiciary. It was noticeable that when the Government recently wanted somebody to do a very political job—to conduct an inquiry into the death of the weapons inspector, Dr. Kelly—they appointed a Law Lord. The idea that has been advanced today in various quarters that there must be a rigid, pure and absolute distinction between the institutions of the judiciary, the Executive and the legislature does not apply and never has, and the Government do not believe it.
	If the separation of powers is so important under the European convention on human rights and we are said to be vulnerable to a challenge, how is it that we signed the convention in 1950 and have existed for more than 50 years under the system whereby powers are not absolutely separated? If there is a problem and an impending court case under the convention in which we are said to be in breach of article 6, let us hear about it and deal with it. However, I know of no such case. The reverse is true—the independence and impartiality of the British judiciary are widely admired throughout the world. Indeed, the Government suffered from that when the judiciary in the House of Lords overturned their attempt to incarcerate people in perpetuity without trial. That happened over detainees.
	The independence does not depend on any theoretical separation of powers but can be traced to the fact that we have—or had until now—a senior member of the judiciary at the heart of British Government. Again, my hon. Friend the Member for South Staffordshire made that point. It is crucial that that position continues in order to safeguard the rule of law and the independence of the judiciary against attacks by weaker members of the Government of the day, who are always irritated by the judiciary. Indeed, the previous Home Secretary recently expressed his frustration at the judiciary, which was inhibiting some of his plans on asylum and immigration. That is a bit rich from a Cabinet Minister in a Government who imported the European convention on human rights into our law.
	A Lord Chancellor with the same status as in the past is better than declarations in the Bill that assert the judiciary's independence and the rule of law. They have no more than a declaratory value because no one will enforce them judicially. I quake at the idea of replacing the Lord Chancellor, with his historic office and traditional seniority, whereby he ranks alongside the Foreign Secretary and the Home Secretary, with a more junior Minister who may be called Lord Chancellor but will be no more than a career Minister on his or her way up the greasy pole, will have no respect for many of the conventions and will not bring to the Cabinet and the centre of Government the weight and authority that is our best safeguard of the rule of law and the independence of the judiciary.
	Of course we need amendments from time to time. The idea of the Lord Chancellor's sitting as a judge has had its day. The Law Lords have agreed among themselves not to vote on matters that are partisan or could come before them in their judicial capacity. The position continuously evolves. However, the Bill goes much further. I am worried by the prospect of granting responsibility for appointments, even with a judicial appointments commission in place, to a comparatively junior Secretary of State, who may be called Lord Chancellor. I am more worried about that than about the Lord Chancellor's making appointments under the current system.
	It is bizarre that the Government and the Under-Secretary who opened the debate made no criticism of the current appointments system. The hon. and learned Member for Redcar (Vera Baird) criticised it and she holds a more logical position. If there is something badly wrong with the current appointments system, let us change it. However, the Government's position appears to be that there is nothing wrong. They have no allegations about the quality of appointments or the criteria—they say that appointments should be made on merit—but they still want to change the system. I have observed lapses in the behaviour of recent Lord Chancellors, but not in regard to making appointments. I and others were critical, for instance, of the last Lord Chancellor for holding fundraising dinners for the Labour party while he was Lord Chancellor, but I certainly have no criticism of his judicial appointments.

David Lammy: The Government have specifically talked about the pool from which candidates are drawn, and about diversity in the context of race and gender. We have made it clear that that is the case for opening up the appointments system.

David Heathcoat-Amory: Yes, and I have no difficulty with that. Those additional criteria can be taken into account by the present Lord Chancellor in making those appointments. I have no quarrel with the proposal to amend the system of judicial appointment. What worries me is that the final decision and the accountability to Parliament will rest with a comparatively junior Minister if the office of Lord Chancellor falls into the hands of a career politician whose final loyalty is not to the office of Lord Chancellor, as it has been up to now.
	My other observation about appointments goes a little wider than the Bill. I am worried by the fact that judges' political backgrounds will become more relevant to the judicial appointments system. This is perhaps inevitable, with the spread of human rights legislation, but it will be extremely dangerous if the background and opinions of judges are to be taken more explicitly into account. That is certainly the case in the United States, simply because judges there, particularly those in the Supreme Court, make political decisions. The whole issue of abortion, for instance, is not decided by Congress, by the political system or by the interplay of political forces at election time. It is not fought out in the political arena. The issue of abortion is a judicial matter. That is why frustrations build up, and why people shoot doctors and blow up abortion clinics in the United States. Those actions are borne out of a frustration that nothing can be done through the political system—by lobbying Congressmen or asking their opinions, for instance—except by going to the extreme lengths of passing a constitutional amendment. None of that can affect the abortion issue; it has to be decided judicially. That builds up frustration and takes decision making further away from the ordinary citizen, and I am worried that we might be moving gradually down that route because of the impact of human rights legislation on our judicial system.
	My last point concerns the supreme court. It has been said that a move out of the House of Lords to a separate building will somehow enhance the court's authority and standing. I think that the opposite will happen. It is almost certain that the new building will turn into another procurement fiasco, which will undermine the public's belief that these changes are anything more than an attempt to endow the governing class—the judiciary, the legislature or whoever; they are all rolled together in the eyes of the public—with another grand building and another opportunity to spend more public money.
	I was disturbed by the non-answers that we received to our questions about the costs involved. The explanatory notes to the Bill seem to suggest that the Treasury's attitude is that the costs of administering the civil law should be recouped in court fees. Indeed, 80 per cent. of the running costs of the supreme court will have to be recovered in that way. It follows, therefore, that the obviously greater cost of moving to a different building—the Minister mentioned a capital cost of £30 million, with another £15 million for the displaced court that currently occupies the proposed building—will have to be recovered. Under resource accounting, the capital cost of such a building appears as a depreciation charge and is therefore included in the running costs. In addition to the cost of running the new building, the capital cost of it will also have to be recovered, not as a contribution from the taxpayer or from the Exchequer, but by those who are seeking access to the courts system.
	A supreme court is a rarified forum for most people to litigate in, but it follows from what the Government said that the additional costs—as the Government already admit, even before the predicted escalation—will be a cost on the courts system and, indirectly, will fall on those who seek access to our system of justice. That worries me and during discussion of the Bill we need further and better particulars about the accuracy of the estimates.
	My final point concerns the name "supreme court". If the Government get their way over the European constitution, the supreme court will be not in this country, but in Luxembourg. That is the juggernaut coming down the road towards us in the form of the European constitution. I represented the interests of this House on the Convention on the Future of Europe and several members proposed that the European Court of Justice should be renamed the European supreme court. That idea was turned down for reasons of political sensitivity in member states, but the powers of the European Court of Justice will expand enormously under the European constitution and it would be appropriate to call it a supreme court. It will have the power to interpret the new constitution and in cases of dispute it will have judicial authority. There will be no right of appeal from the European Court of Justice on matters of the European constitution. Of course, the constitution takes in new areas, including criminal justice. Under the primacy clause—article I-5a—the whole constitution and all its institutions have a claimed explicit primacy over any national laws.
	The European constitution incorporates formally the whole European charter of fundamental rights. The British Government's objections were overruled, so when the Union legislates on a matter such as asylum, as it has done, the EU charter of fundamental rights will, thereby, become fully binding on this country. No British court and no part of the British Parliament will be able to overrule the decisions of the European Court in that interpretation.
	We may debate what we fondly still imagine to be a supreme court in this country, but its title will be incorrect. It will not have supremacy over the new, rebranded European Court of Justice under the proposed constitution. I suggest that if the constitution is ratified—I hope that it will not be—our court should be called not a supreme court, but, more accurately, the British national court.
	This is a bad Bill born of expediency. The principles that are supposed to underlie it are confused and mistaken. It has learned nothing from the past, but seeks to overturn the inherited wisdom that has built up in what we call the British constitution. It ignores the real constitutional revolution that is heading our way in the form of the first written British constitution since 1653: the European constitution. For all those reasons, I recommend that the House rejects the Bill.

Clive Soley: If the right hon. Member for Wells (Mr. Heathcoat-Amory) was so concerned about the European constitution he should have voted against Lady Thatcher's introduction of the Single European Act, which was one of the biggest constitutional changes made in this country.
	First, I have an apology. Like my hon. Friend the Member for Stafford (Mr. Kidney), I missed part of the debate to attend one of those quiet and relaxing meetings of the parliamentary Labour party where nothing ever happens. However, on this occasion the Lord Chancellor spoke extremely well on the very issue that we are discussing.
	As a member of the Select Committee on Constitutional Affairs, and as someone who has been interested in the subject for many years, I have a few comments to make, but I shall be brief. As I have said before in the House, the British constitution has evolved over many hundreds of years, but at times—as at present—the Conservatives seem to think that it is set in aspic and that we should hold on to it for ever. We would not have some of our great traditions to defend if we had not changed things in the past. Change is long overdue. Before the 1997 election, I said that even if the Labour Government did nothing but make the constitutional changes we were talking about at that stage, Britain would never be the same again. Such change is a good thing. It is long overdue, and we should have made it before.
	Opposition Members say that judges must be appointed on merit, and they are right, but they are only just beginning to recognise that something was seriously skewed in the previous judicial system, inasmuch as that there were hardly any—if any—women or ethnic minorities at senior level. The Conservatives could have done something about that when they were in government, but they never did.
	I have listened to comments made throughout the debate about the need to debate all the Bill's stages on the Floor of the House. The Opposition may win that concession. Who knows? We should recognise, however, that, as my hon. Friend the Member for Stafford said, few Members from any party have attended the debate today. The reason for that, I suspect, is that for too long we have seen such issues as issues for the Lords. The Lords have debated the Bill, and I can assure Members on both sides of the House that the Labour party has held plenty of discussions about it, but there has been relatively little debate in the Chamber. I am concerned that if we were to take all stages of the Bill on the Floor of the House we might have difficulty in increasing the number of Members who want to take part. There is something to be said for taking the important parts of the Bill on the Floor of the House while dealing with less contentious parts elsewhere. That would achieve a better debate.
	As a member of the Select Committee, I visited Australia and New Zealand, which have many similarities to Britain, to look at their constitutional courts. One of the most important lessons we learned was that although, as we all agree, it is vital to make a distinction and ensure the independence of the judiciary from the political system, it is a mistake to have too much of a gap between the two, in the sense that we could end up with a closed-shop legal system in which judges appoint judges and the whole thing feeds on itself—something greatly feared in Australia and New Zealand. I regard the legal profession as one of the strongest closed shops of all time, yet it was never dealt with by either Lord Tebbit or Margaret Thatcher.
	Opposition Members must take on board the complicated arguments about the need to bring the judicial system closer to the people. People in my constituency and elsewhere feel that things are moving on crime and law and order, and that policing is getting better. However, the trouble is the view that, as someone who phoned me today about offences said, "But of course the courts will ignore that, won't they?" One reason for that view is that the legal system, especially as set up in the House of Lords, is not close enough to the people—as we have argued in the Labour party for many years.
	The Opposition say that the Lord Chancellor—someone who spends about £3 billion a year, running a Department—must be a lawyer and sit in the Lords. Why? There is a very strong case for the Lord Chancellor to be answerable in this House and to be heard on the media, defending the way in which the system works and arguing about how it needs to change to improve the lot of the people of this country, when we are dealing with judicial matters.
	If we consider what happens in other countries that have systems similar to ours—the Constitutional Affairs Committee rightly chose to visit Australia and New Zealand—there is strong evidence for better political oversight of the judicial system, and the independence of the judiciary from the political system can be maintained. I agree about the need for the independent appointments body and all that goes with it, but there should be more effective political oversight, with a requirement that the people in the key positions—obviously, the Lord Chancellor is one of them—must be answerable to the people.
	I might have got some of the details wrong about the father of the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), but I have a vivid memory of his father ringing the bell and making a great Conservative speech, while aiming to become Prime Minister and then popping up as Lord Chancellor. As a relatively new and interested person in politics, I was told that those two things must always be kept separate—but that was always nonsense, and a bit of a window-dressing exercise.
	In fact, Lord Chancellors are politicians, and most people outside the House have spotted it—they know that Lord Chancellors are members of political parties—and it is time that we recognised that, but let us not worry too much about whether they sit in the Lords or the Commons. Certainly, let us not worry too much about whether they are lawyers. I agree that they must be able to speak up effectively for the independence of the law, but they do not have to sit in the Lords.

Douglas Hogg: One could make the same comments about the office of the Speaker.

Clive Soley: One could, but that is a much easier matter to deal with. The House of Commons and the House of Lords can deal with those matters themselves and come up with a system that works. We are talking about something that has an impact on the vast bulk of the population, and those in the legal profession must answer the question why so many people see them as being very expensive and largely inefficient. That is not a good image, and they need to think about it.

Edward Garnier: One of the advantages that the hon. Member for Ealing, Acton and Shepherd's Bush (Mr. Soley) has over me is that he was able to make a speech wholly uninfluenced by most of the contributions made earlier in the debate. That may be something that the House will value. It is a pity that he was unable to be here to listen to the entirety of the debate, as I have done—no doubt he was absent for very good reasons—because he would have realised from the outset that he did not need to speak the first sentence of his speech, given that the Opposition Members who have spoken do not take the antediluvian attitude that he ascribes to us.
	Many Opposition Members have spoken not in support of the Bill, but in support of some of its aspects, particularly in relation to the judicial appointments commission. There is much to be criticised in the detail relating to the judicial appointments commission, and my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) set out those criticisms very clearly. When the hon. Member for Ealing, Acton and Shepherd's Bush has a moment, perhaps tomorrow, I suggest that he read the speech of my right hon. and learned Friend, because, clearly, he did not have the advantage of listening to it this afternoon.
	A number of hon. Members have criticised the Prime Minister for making these constitutional reforms, particularly in relation to the Lord Chancellor's office, on the back of an envelope, as part of a Cabinet reshuffle. Those criticisms are well made. That is not to decry all things that have been written on the back of an envelope. As I understand it, Abraham Lincoln's Gettysburg address was written on the back of an envelope, and it was none the worse for that. However, we are not here presented with some Leonardo-style doodle by a perceptive intellect on the constitution; we are hearing about what is effectively a mediaeval assassination note written by a contemporary Henry II to rid himself of a turbulent Lord Chancellor, Lord Irvine of Lairg. To do that, the Prime Minister had to invent a system that required the abolition of the office, without thinking of the consequences.
	Most acts have consequences, and this act by the Prime Minister had profound consequences. It led to an embarrassing start for the office of the current Lord Chancellor, Lord Falconer, who is in every respect a perfectly likeable person, but who does not, I am afraid, carry either the political or the legal authority of many of his predecessors.
	The Lord Chancellor is not always a politician. Lord Mackay of Clashfern was primarily a huge legal intellect, who reached the very highest office as a Scottish judge and as a Law Lord. He was translated into the office of Lord Chancellor, and I am not even sure that he was a member of the Conservative party until he became Lord Chancellor. The hon. Member for Ealing, Acton and Shepherd's Bush was wrong about that too.
	Irrespective of whether a Lord Chancellor was a former party politician, it was assuredly true that once he became Lord Chancellor, he gave up any form of party political ambition and concentrated on doing what he was employed to do by the state: to defend to his last breath—to quote Lord Hailsham—the independence of the judiciary. It takes someone of intellect and authority, and someone who is respected by the judiciary, no matter whether they are appointed by a judicial appointments commission or under the old system, to command not only the respect of the judiciary and the legal profession—one can be as rude as one likes about either of those institutions—but of Cabinet colleagues and the Prime Minister.
	It is no good critics of the old system saying that the Lord Chancellor was no more than a jobbing politician, the protector of a vested interest and not a serious modern part of a modern constitution. It seems to me, at least—I leave it to others to make up their minds whether they agree with me—that the reason that the office of the Lord Chancellor is old is because it is good and has served a useful constitutional purpose. However, the Prime Minister, his friends and those who like to write constitutional reforms on the backs of envelopes now come and tell us that the Lord Chancellor's office is bad, because it is old and needs to be modernised. As many Conservative Members have demonstrated all too well in the debate, the Government's arguments are ill thought out and have not been properly assessed.
	One of the arguments put forward by the Government is that the office of Lord Chancellor is now out of date, so we should have a modern Secretary of State in the House who can secure the interests of that spending Department. If one changes the nature of the office or of the job—the "post", as the Prime Minister prefers to call it—it becomes increasingly ridiculous to call that office holder the Lord Chancellor.
	The Lord Chancellor whom the Government would like to see is no more than a junior or middling rank Cabinet Minister. Indeed, we see the genesis of that in the current pecking order in the Cabinet list. Whereas the Lord Chancellor used to be No. 2 or 3 on the list—immediately after the Prime Minister—he is now second or third bottom in the Cabinet pecking order. That might be of no importance whatever, but it just so happens that the Government intend to fillet out the Lord Chancellor's functions and turn him into no more than the presiding officer over a spending Department. They will then say to the public, "How ridiculous to have a man who is the Secretary of State for Constitutional Affairs, the Speaker of the House of Lords, and a member of the other arm of the constitution. It is quite improper nowadays for this person to have a limb in each of the three parts of the constitution." The Government are performing a great con trick, and it is contemptible for them to try to persuade us that the changes that they are bringing forward are based on any thoughtful appreciation of what the constitution has stood for, and what the office of Lord Chancellor means.
	The Minister who opened the debate said that it was right for the person who administers the courts to be a full-time Minister in this House—but that argument is not especially useful when talking about the role of the Lord Chancellor. The Lord Chancellor's role is something else. We could have a courts Department, but if we go back only 20, 30 or 40 years—before the Lord Chancellor's Department, or, now, the Department for Constitutional Affairs, became such a spending leviathan—all the arguments that the Minister put forward at 3.30 pm fall to bits. [Interruption.] I can hear my hon. Friend the Member for Reigate (Mr. Blunt), but I have something to say.
	The Minister said that changing the present situation would settle and clarify the relationship between the courts, the Executive and Parliament and make it easier to understand. If there were any logic behind the Government's arguments, they would remove the Executive from the legislature. If they wish to be purists in the misunderstood sense of Montesquieu, as the hon. Member for Stafford (Mr. Kidney) said, they would clearly separate all three limbs of the constitution, but they will not do so.
	It is a pity that I have so little time, because although my views are no better than those of any other hon. Member, I would at least like the occasional opportunity to express them in the House. I would have liked to criticise the Government's proposals on the supreme court and criticise, yet support in part, their measures concerning the judicial appointments commission. Others have said a great deal about that, and no doubt hon. Members who could not attend the debate will be able to read what was said tomorrow.
	The Bill is by and large regrettable. Its conception was ill advised, and its nurture has not been improved by the arguments put forward by the Government.

Jonathan Djanogly: I declare my interest as a practising solicitor. It is good that a fair balance of lawyers and non-lawyers have spoken. We have had an interesting debate, but given the Government's proposals, it has not been satisfactory.
	As my hon. Friend the Member for Beaconsfield (Mr. Grieve) and other colleagues made clear, the constitutional proposals in the Bill began life as a slapdash press release from Downing street. One and a half years later, the Government's proposals remain as ill conceived as ever and insult has been added to injury because they have refused to allow such serious constitutional issues to be considered fully in Committee on the Floor of the House, as my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) powerfully explained. My hon. Friends the Members for Aldridge-Brownhills (Mr. Shepherd) and for South Staffordshire (Sir Patrick Cormack) and my right hon. Friend the Member for Wells (Mr. Heathcoat-Amory) supported that point.
	The official Opposition will not oppose constitutional reforms that genuinely benefit this country, even when they are contained in such an unfortunate Bill. We accept the premise of the concordat and the redefining of the relationship between the judiciary and the Government for the reasons succinctly expressed by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), my right hon. Friend the Member for Wells and others. We thus do not object to the judicial appointments commission as long as merit, rather than a candidate's political views or crony potential, remains the sole criterion for the selection of judges.
	The hon. Member for Stafford (Mr. Kidney) and the hon. and learned Member for Redcar (Vera Baird) broadened the argument about the commission by suggesting that there should be a greater mix of gender and ethnicity and more solicitor judges. The hon. Member for Stafford supported a more evolutionary approach, whereas the hon. and learned Member for Redcar was slightly more revolutionary.
	We will not, however, support the acts of constitutional vandalism proposed in the Bill. What my hon. Friend the Member for Beaconsfield called the unedifying spectacle of the undermining of the historical office of Lord Chancellor and the creation of an unnecessary new supreme court are not changes that we believe the House ought to accept. Concerns about the Government's plans have been eloquently expressed, both in this place and throughout the Bill's passage in the other place.
	I should like to address some of the interesting, and sometimes persuasive, arguments that we have heard today. Various hon. Members have considered the office of the Lord Chancellor. The right hon. Member for Berwick-upon-Tweed (Mr. Beith) explained the importance with which different groups view the role and its independence. We are still shocked by the Government's determination to mount an assault on this long-standing and constitutionally vital position. Indeed, it is only as a result of an Opposition amendment in another place that the Lord Chancellor has not been wiped clean off the face of the Bill.
	In supporting the Bill for the Liberal Democrats, the hon. Member for Somerton and Frome (Mr. Heath) made a wide-ranging speech, which included his views on banning all Ministers in the other place and developing the role of the Attorney-General. I do not agree with him that a Secretary of State for Constitutional Affairs will have a stronger position in Cabinet than an unelected Lord Chancellor. We believe that the Lord Chancellor has, and should have, a vital role in upholding the rule of law and as the guardian of judicial independence. He should continue to act as the key link between the judiciary and the Executive, and his influence over constitutional matters should be maintained through the tenure of a senior Cabinet post.
	Their lordships took a further opportunity to defeat the Government in the other place. In doing so, they secured an amendment to the effect that the Lord Chancellor must always be a member of the other place, as is the convention at present. That requirement would underline his ongoing constitutional role. He would also continue to assist in placing at least some distance between him and the political pressures of this place. Another Opposition amendment ensured that the Lord Chancellor will also need to have gained experience as a senior lawyer or judge. To undertake their delicate role, future Lord Chancellors must continue to be equipped with experience of interpreting the law.
	The Minister today announced the Government's intention to reverse those improvements to the Bill. After the significant work in the other place, that is regrettable. As my right hon. and learned Friend the Member for Sleaford and North Hykeham said, both the requirement for membership of another place and that for senior legal experience will help to attract individuals who should be less susceptible to any political influence. As he eloquently put it, they will not give two hoots for preferment or patronage. We welcome that.
	I agree with my hon. Friend the Member for South Staffordshire that the Lord Chancellor has the inherent power to stand up to Prime Ministers. He and my hon. and learned Friend the Member for Harborough (Mr. Garnier) also made the important point that, had we not had the Law Lords in the upper Chamber, the content of the Bill, as it was delivered to this House, would be much worse.
	My right hon. Friends the Members for Suffolk, Coastal (Mr. Gummer) and for Wells, and my right hon. and learned Friend the Member for Sleaford and North Hykeham spoke of how style and convention is vital to the work of the Lord Chancellor and effective in practice. That includes the power of advice and influence, which needs professional expertise. A system that has taken 1,000 years to build is now, it is said, to be sacked in two years. The hon. and learned Member for Redcar said that it was unacceptable that members of the Executive should be able to appoint the judiciary, but spoke in rather absolute terms that do not always reflect the subtlety of our constitutional process.
	Many hon. Members spoke of the Government's proposal to create a supreme court, which is also the focus of our reasoned amendment. In creating such a court, the only outcomes that appear guaranteed are unnecessary upheaval and unwarranted cost. The Government's starting estimate is for £30 million of set-up costs, but we all know how good they are at building estimates. Furthermore, an estimated £8.8 million of annual running costs for the new court stands in marked contrast to current running costs of a little over £168,000 a year. My right hon. Friend the Member for Wells mentioned how the situation is being exacerbated by proposals to increase court fees to litigants.
	What do we stand to gain in return for that hefty investment? The Appellate Committee of the House of Lords is admired at home and abroad for the quality of its rulings, as hon. Members have said. The work of the Law Lords would not change in a new supreme court, as was pointed out by my hon. Friend the Member for Aldridge-Brownhills and my right hon. Friend the Member for Suffolk, Coastal. How would rehousing the Law Lords add anything to the excellence for which they are so rightly renowned? There may be some practical difficulties with the present arrangements, but why not explore further the suggestions made in another place for improving the facilities available to the Appellate Committee at Westminster?
	The Government seem to think that the public are in total confusion over the role of the Appellate Committee and, worse still, they question the Committee's independence. I concede that a Lord of Appeal in Ordinary may not be a household name, but the role of the Law Lords as final arbiters of British justice is widely recognised in this country. We think that the public see clearly how well the country's highest court works and see no need to change it. A change of name would not produce some sudden breakthrough in public understanding. If anything, new questions would be thrown up. If a shiny new supreme court would prove so independent of Parliament, why would Parliament continue to be supreme over it?
	The hon. Member for Perth (Annabelle Ewing) and the Scottish National party seem to be jumping on the bandwagon and want to use the proposals as an opportunity for the repatriation of jurisdiction to Scottish courts. As to the public's opinion, how would the court command more respect by moving from the nation's seat of power to less prestigious surroundings? The Law Lords might instead be perceived as ensconced in some ivory tower, delivering judgments detached from the real decision making in Parliament.
	The hon. and learned Member for Dudley, North (Ross Cranston) made a serious and measured speech on access to justice, but his comparison with Zimbabwe reinforced our contention that what we have in this country works pretty well. Separation of powers does not require the Law Lords to be evicted from Parliament, just as the Government are not proposing that the Executive need to be prised from the legislature.
	In noting the disagreement between the right hon. Member for Berwick-upon-Tweed and Lord Bingham, I add that the functions of the Appellate Committee would not change with a new building, nor would the impartiality with which the Law Lords undertake their work. The Government's arguments on the point seem theoretical at best and, at worst, represent a failure to recognise the overall constitutional balance that works in this country.
	The integrity and independence of the Appellate Committee are not in question. As many hon. Members have attested, the scrupulous conduct of the Law Lords in another place already bears witness to their independence. Even the introduction of the Human Rights Act 1998 has not challenged that legitimacy. As my right hon. and learned Friend the Member for Sleaford and North Hykeham and others have noted, removing the Lords of Appeal in Ordinary from Parliament would only impoverish the quality of debates and legislation arising in the other place. The Law Lords would likewise stand to lose something: the benefit of their proximity to the heart of government. In short, our present arrangements are effective and respected. The Government's demand for a supreme court risks damaging that position, at significant financial cost and for few if any tangible benefits.
	As my right hon. Friend the Member for Suffolk, Coastal warned, showing his experience of government and, incidentally, of a happy marriage, this is a Government of words, not action. He showed how we have not been given details of how the plans will work, while we know that what we have works now. He powerfully called for a return to courtesy being shown towards this place.
	We must resist any further attempts by this Government to modernise purely for the sake of ticking another box in Labour's modernisation agenda. Enough parliamentary time has already been spent on measures that are not a priority for the British public. Like us, they will not understand why millions of pounds should be spent needlessly on a supreme court given that the Law Lords have proved so adept at their work. Similarly, they will not comprehend a Government who seek to abolish in the Lord Chancellor a Minister who for hundreds of years has helped to ensure that the rule of law is respected by the Executive. The Government are forcing through their constitutional hobby-horses with inadequate justification.
	In those circumstances and for the reasons that I have set out, I ask the House to vote against the Second Reading of this Bill and in favour of the reasoned amendment tabled by my hon. Friends and me.

David Lammy: Throughout today's debate, Opposition Members have repeatedly expressed their dissatisfaction with the terms of the programme motion before the House. I inform the House that it is the Government's intention to move the programme motion this evening, but following discussions between the usual channels, it has been decided that a supplementary motion will be tabled. An additional day on the Floor of the House will be provided for and I am sure that the usual channels will continue to discuss how best to divide consideration in Committee and on Report and Third Reading. There are principled disagreements between the Government and the Opposition on this issue and we still believe that the terms of the programme motion before the House are correct, but we hope that the compromise in response to the issues that have been raised is satisfactory.

Dominic Grieve: I welcome the fact that there is to be a further day of debate on the Floor, but I shall still vote against the programme motion, because until we have a proper programme motion, we have only the one on the Table.

David Lammy: Today's debate has been characterised by the spectre of the Opposition trying to find their feet—at least on finances—and falling over themselves in the process. The reasoned amendment is one of enervating insularity. They would deny the people of this country a supreme court that is absolutely free of the taint of political process—and for what? For nothing more than grubby opportunism. Today, we have heard the dinosaurs and continued to watch the process of their extinction with interest.
	The hon. Member for Beaconsfield (Mr. Grieve) sums up the position nicely and in so doing demonstrates that he and his party have become the Alf Garnett of British politics. It would be amusing if they were not so deadly serious. Theirs is the same patrician view that voted against devolution in Scotland and Wales, the Human Rights Act 1998 and the Freedom of Information Act 2000. Every time the Government attempt to reconnect our public institutions with the people they serve, the Opposition oppose us.

Dominic Grieve: I assume, therefore, that the attack on trial by jury and the decision to oust the right of asylum seekers to seek redress in the courts were examples of the hon. Gentleman's demotic tendencies.

David Lammy: We are debating the Constitutional Reform Bill. Happily, other hon. Members have been more resolute in their values and contributions today. My hon. and learned Friend the Member for Dudley, North (Ross Cranston) offered a concise and considered endorsement of the rule of law and the proposals as framed. The hon. Member for Somerton and Frome (Mr. Heath) voiced the Liberal Democrats' support for the Bill and disagreed with the official Opposition's suggestions regarding the enormity of the consequences. We heard outstanding contributions from my hon. and learned Friend the Member for Redcar (Vera Baird), not only in her main speech, but in her interventions. We also heard a powerful speech—albeit one with which I disagreed—from the right hon. Member for Wells (Mr. Heathcoat-Amory)—and a thoughtful one from my hon. Friend the Member for Stafford (Mr. Kidney).
	The Bill is not constitutionally disastrous, as the hon. Member for Beaconsfield suggested, nor is it about change for change's sake amounting to a white elephant. It is about the relationship between people and the institutions that govern them, which is critical to a liberal democracy, as he knows. Yes, of course we should take pride in our constitutional heritage as the right hon. Member for Suffolk, Coastal (Mr. Gummer) and the hon. Member for South Staffordshire (Sir Patrick Cormack) suggested. Our institutions are respected and renowned throughout the world, but a strong reputation should not prevent us from looking at how those arrangements are working in the 21st century. We must be informed by our history, not dazzled or paralysed by it.
	The hon. Member for Beaconsfield said that a body that exercises the same functions as the House of Lords is a waste of money. He knows that that argument is based on a false premise. The Government are not saying that the new supreme court would exercise different functions from the Appellate Committee of the House of Lords; we are saying that, at the turn of the 21st century, the time has come to ensure that the highest appeal court is separate from the legislature. As my hon. and learned Friend the Member for Dudley, North said, quoting Lord Bingham, that separation is a badge of judicial independence.
	The time has come. It is unacceptable in the 21st century for the judges who are charged with deciding whether the detention of 12 suspected terrorists in Belmarsh is lawful also to sit in Parliament. It is unacceptable that judges sitting in the Lords must decide whether a Bill passed by the very House of which they are Members is compatible with the Human Rights Act 1998. It is unacceptable in the 21st century for us to tell emerging democracies that it is fundamental that they have a separation of powers but not to have the same ourselves.
	The right hon. Member for Suffolk, Coastal said that that the judiciary is not biased. Of course, Members of Parliament know that there is no political bias in the decisions reached by the judges, but that is not enough. Our commitment to judicial independence must be public and demonstrably clear. Our new supreme court will deliver that. The hon. Member for Beaconsfield was one of a number of Opposition Members who raised the issue of costs. The cost of locating the court at Middlesex Guildhall, as hon. Members will be aware following discussion, is £30 million. That cost is effectively for the refurbishment of the existing building, and I am pleased that my hon. and learned Friend the Member for Dudley, North and the hon. Member for Somerton and Frome supported the Government by saying that the building is desirable. In Lord Bingham's words, the cost reflects
	"the importance which a liberal society attaches to the rule of law."

Edward Garnier: In his speech, the Under-Secretary of State for Constitutional Affairs, the hon. Member for Shipley (Mr. Leslie), had to admit that rooms to replace the eight or nine Crown court rooms in the Guildhall must be found elsewhere in London. Where is that building to be found, when will it be completed and what will it cost?

David Lammy: We are still consulting on that, as the hon. and learned Gentleman knows as a court recorder.
	The hon. Member for Beaconsfield said that the establishment of a supreme court would deny Parliament the experience and expertise that the Law Lords bring to debates and legislation. It is axiomatic that, in any policy to separate the supreme court from the House of Lords, the supreme court judges should cease to have a direct role in the work of the House. Law Lords are judges, not legislators, and are specifically appointed to act as the UK's supreme court. Half the Law Lords are reported to be uncomfortable with the present arrangements. Some of them observe a self-denying ordinance and do not participate in debates on political matters on which they may have to adjudicate. It is clearly time to sort out that confusing situation.
	It specious to suggest that the House of Lords will lose expertise. Retired Law Lords can remain in the House and contribute if they wish. There has been discussion about the location of the new court, as I said. Lord Millett said:
	"The fact is that this House can no longer provide the accommodation, resources and facilities which a properly serviced Supreme Court requires".—[Official Report, House of Lords, 12 November 2004; Vol. 425, c. 1293.]
	There are certainly compelling grounds to change that arrangement.
	The hon. Member for Perth (Annabelle Ewing) raised the failure of the supreme court to repatriate final appellate jurisdiction of civil cases to Scotland. That is not the case. The Scottish Executive and the Scottish Law Society were consulted and favour our proposals. There is not a break with the treaty of Union. There has been considerable agreement today that the office of Lord Chancellor should be reformed to meet the demands of modern and complex government. The hon. Member for Huntingdon (Mr. Djanogly) said that we have been defeated on this issue. However, it is not about the title but the responsibilities of that office. The relationship between the citizen and the state is too important to be left unchecked, unreformed and out of touch. Following a long period of political stagnation until 1997, the legislation is important, and I commend it to the House.

Question put, That the amendment be made:—
	The House divided: Ayes 126, Noes 329.

Question accordingly negatived.
	Main Question put forthwith, pursuant to Standing Order No. 62 (Amendment on second or third reading), and agreed to.
	Bill accordingly read a Second time.

CONSTITUTIONAL REFORM BILL [LORDS] (PROGRAMME)

Motion made, and Question put forthwith, pursuant to Standing Order No. 83A(6) (Programme motions),
	That the following provisions shall apply to the Constitutional Reform Bill [Lords]:
	Committal
	1.   The following shall be committed to a Committee of the whole House—
	(a)   Clauses 1 to 7, 20, 21, 37, 94, 95 and 105 to 109;
	(b)   Schedule 8;
	(c)   any new Clauses amending section 12 of the Justice (Northern Ireland) Act 2002;
	(d)   any new Clauses relating to matters connected with the Supreme Court of the United Kingdom as reserved or excepted matters under the Northern Ireland Act 1998.
	2.   The remainder of the Bill shall be committed to a Standing Committee.
	Proceedings in Committee
	3.   (1)   Proceedings in Committee of the whole House shall be completed in two days.
	(2)   Those proceedings shall be taken on each of those days as shown in the following table and shall be taken in the order shown there.
	(3)   Proceedings on each of those days shall (as far as not previously concluded) be brought to a conclusion at the time specified in the second column of the Table.
	(4)   Standing Order No. 83B (Programming committees) shall not apply to proceedings in Committee of the whole House.
	
		TABLE
		
			  
			 Proceedings Time for conclusion of proceedings 
			 First day   
			 Clauses 1, 4, 6 and 7 Three hours after the commencement of proceedings on the Bill 
			 Clause 5, any new Clauses amending section 12 of the Justice (Northern Ireland) Act 2002, Clauses 2 and 3 The moment of interruption or three hours after the commencement of proceedings on Clause 5, whichever is the later 
			 Second day 
			 Clauses 20 and 21, any new Clauses relating to matters connected with the Supreme Court of the United Kingdom as reserved or excepted matters under the Northern Ireland Act 1998, Clause 37, Schedule 8, Clause 109 Three hours after the commencement of proceedings on the Bill 
			 Clauses 105 to 108, 94 and 95 The moment of interruption or three hours after the commencement of proceedings on Clause 105, whichever is the later 
		
	
	4.   (1)   Proceedings in the Standing Committee shall (so far as not previously concluded) be brought to a conclusion on Thursday 24th February 2005.
	(2)   The Standing Committee shall have leave to sit twice on the first day on which it meets.
	5.   When the provisions of the Bill considered, respectively, by the Committee of the whole House and by the Standing Committee have been reported to the House, the Bill shall be proceeded with as if it had been reported as a whole to the House from the Standing Committee.
	Consideration and Third Reading
	6.   Proceedings on consideration shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which those proceedings are commenced.
	7.   Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.
	8.   Standing Order No. 83B (Programming committees) shall not apply to proceedings on consideration and Third Reading.
	Other proceedings
	9.   Any other proceedings on the Bill (including any proceedings on consideration of any Message from the Lords) may be programmed.—Mr. Watson.]
	The House divided: Ayes 297, Noes 161.

Question accordingly agreed to.

CONSTITUTIONAL REFORM BILL [LORDS] [MONEY]

Queen's recommendation having been signified—
	Motion made, and Question put forthwith, pursuant to Standing Order No. 52(1)(a) (Money resolutions and ways and means resolutions in connection with Bills),
	That, for the purposes of any Act resulting from the Constitutional Reform Bill [Lords], it is expedient to authorise—
	(1) the payment out of money provided by Parliament of—
	(a) any expenses of a Minister of the Crown in connection with the Act;
	(b) any increase attributable to the Act in sums payable out of money provided by Parliament under any other enactment;
	(2) the payment out of the Consolidated Fund of—
	(a) salaries of judges of the Supreme Court of the United Kingdom;
	(b) any increase attributable to the Act in sums payable out of that Fund under any other enactment.—[Mr. Watson.]
	Question agreed to.

CONSTITUTIONAL REFORM BILL [LORDS] [WAYS AND MEANS]

Motion made, and Question put forthwith, pursuant to Standing Order No. 52(1)(a) (Money resolutions and ways and means resolutions in connection with Bills),
	  That, for the purposes of any Act resulting from the Constitutional Reform Bill [Lords], it is expedient to authorise the levying of fees prescribed under the Act in respect of anything dealt with by the Supreme Court of the United Kingdom.—[Mr. Watson.]
	Question agreed to.

EUROPEAN COMMUNITY DOCUMENT

Motion made, and Question put forthwith, pursuant to Standing Order No. 119(9) (European Standing Committees),

Humane Trapping Standards

That this House takes note of European Union Document No.12200/04, draft Directive on introducing humane trapping standards for certain animal species; and supports the Government's view that the humane trapping standards should be implemented and adopted in the United Kingdom.— [Mr. Watson.]
	Question agreed to.

VIOLENT VIDEO GAMES

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Watson.]

Keith Vaz: I am grateful for the opportunity to raise in the House the important issue of controlling the sale of violent video games. I am delighted that my right hon. Friend the Minister for the Arts is on the Front Bench.
	Hon. Members may recall that I raised at Prime Minister's questions on 15 September 2004 the case of Stefan Pakeerah, a 14-year-old Leicester schoolboy who was brutally murdered. Stefan's parents believe that the perpetrator of that savage attack was influenced by the video game "Manhunt". Stefan's mother, Giselle Pakeerah, has been campaigning to ban the sale of the PlayStation2 game. Stefan's father, Patrick Pakeerah, said:
	"The game was like an instruction manual".
	Seventeen-year-old Warren Le Blanc pleaded guilty to Stefan's murder and will serve at least 13 years in prison before being considered for release.
	Since the tragic attack, I have been sharing the concerns of the Pakeerah family and have received a growing number of letters from concerned parents on the issue. I am grateful for the support of my right hon. Friend the Secretary of State for Trade and Industry, my right hon. Friend the Member for Dewsbury (Ann Taylor) and other parliamentary colleagues.
	The intense worry about video and computer games is based on the belief that the violent games are totally inappropriate for all children. Video games have come a long way since the creation of Pong in the early 1970s. Nowadays, there are thousands of games to choose from, and the technology becomes more and more sophisticated every day. In a little more than two years, video game consoles have gone from processing 350,000 polygons per second—a measure of graphic and action quality—to 125 million polygons per second. The increasingly realistic and exciting nature of electronic games has helped to make them immensely popular with children and youths. According to David Walsh, a researcher with the National Institute on Media and the Family, 79 per cent. of American children now play computer or video games on a regular basis. Children between the ages of seven and 17 play for an average of eight hours a week. I am the father of two children—Luke, aged nine, and Anjali, aged seven. They, too, play these games.
	For the video games industry, 2004 was one of the most successful gaming years ever. Sales totalled £1.34 billion in the UK last year, a rise of 6.6 per cent. on 2003, according to the European Leisure Software Publishers Association. The game most anticipated for 2004 was "Grand Theft Auto: San Andreas", and it has sold an astonishing 1.75 million copies since its release at the end of October 2004. Without a doubt, we are in the midst of a gaming explosion. According to Deloitte and Touche, the worldwide number of game-compliant devices other than personal computers—mobile phones, consoles and hand-held computers, for example—will see a sixfold rise by 2010, from 415 million now to 2.6 billion.
	Most of the games on the market are appropriate for young players, and the best of them can bring a lot of benefits. Besides being fun, some of the games provide practice in problem solving and logic, as well as in strategising. However, the few games that feature violence, gore and antisocial behaviour have raised concerns. The virtual reality aspect of games has entered a new phase of reviving history by replaying it. The recent launch of JFK Reloaded, which allows players to simulate the shooting of former American President John F. Kennedy, can be easily downloaded from the internet without any control measures, and be played by children younger than the recommended age limit. This disgusting game, with its appalling content, should not be allowed on the market.
	The case of Stefan Pakeerah shocked the city of Leicester. Warren Le Blanc lured Stefan from Glenfield into the woodlands near his home at Stokes Wood Park, New Parks, Leicester, then chillingly inflicted more than 50 injuries with a claw hammer and a kitchen knife. He initially intended robbing Stefan of drugs and cash to raise money to pay off a debt. Mrs. Pakeerah, a senior nurse, remembers her only son as an intelligent, handsome, courteous and amazingly popular young man with an excellent sense of humour and a real zest for life. More than 350 people attended Stefan's funeral, and there are more than 1,200 entries on a memorial website set up in memory of Stefan by one of his friends. It is obvious that Stefan was loved by many people and held in very high regard. Passing sentence, Judge Michael Stokes QC said to Le Blanc:
	"You've committed a truly appalling crime and have taken the life of a 14-year-old boy in the most brutal fashion. You and you alone carried out a prolonged murderous vicious attack with weapons upon someone who thought you were a friend."
	Stefan's parents believe that their son's killer mimicked a game called Manhunt, in which players score points for brutal killings. The game has been banned in Australia and New Zealand. New Zealand's chief censor, Bill Hastings, has cited the game as the most violent ever made. I pay tribute to Mrs. Pakeerah, a brave and courageous mother, who in her grief could easily have let matters pass, but who has started an impressive campaign on this issue. She will not give up until something is done.
	Violence is a recurring theme in the media, and the two combined have often been linked with aggressive behaviour in young people. The current trend in video games is for the players to be the bad guys, acting out criminal fantasies and earning points for attacking and killing innocent bystanders. Although the games are rated 18 for adult audiences, it is common knowledge that they are popular among young people. Nine out of 10 children have a computer or games console. A quarter play video games every day.

Tim Loughton: I well remember the ghastly case that the hon. Gentleman raises well, and it was a clear example of virtual reality spilling out into violent real life. Does he agree that there are two main problems? The first is the apparent reluctance of the British Board of Film Classification, which has been responsible for such games since 1984, to act to ban them or give them a serious classification unless there is clear evidence of a link, which it is difficult to prove scientifically. The second is that too many of the games that are rated as being for adults only are sold to under-age children through high street retailers who do not realise—as they do when it comes to selling cigarettes or alcohol to young people—the damage that such games can do. Parents do not know what they are letting their children get into.

Keith Vaz: I thank the hon. Gentleman for that intervention. He is right and I agree with everything that he said. I hope later in my speech to point out what can be done.
	Most games are harmless entertainment, but in many amazingly lifelike popular titles, children are acting out violent experiences on their screens. According to the Video Standards Council, 97 per cent. of all games are suitable for everyone. The few that qualify for careful scrutiny contain the following material. Players in "Grand Theft Auto 3" earn points by carjacking and stealing drugs from street people and pushers. In "Carmageddon", players are rewarded for mowing down pedestrians—sounds of cracking bones add to the realistic effect. The first-person shooter in "Duke Nukem" hones his skills by using pornographic posters of women for target practice, and earns bonus points for shooting naked and bound prostitutes and strippers who beg, "Kill me." In the game "Postal", players act out the part of the postal dude, who earns points by randomly shooting everyone who appears, including people walking out of church and members of a high school band. Postal dude is programmed to say, "Only my gun understands me."
	Unlike films and television, which are passively watched, the game lets the player feel the sensation of committing violent acts. Those playing the game are in the game, but there is no pain or aftermath, so children never learn the real-life consequences. The main concern is that children, unlike adults—and rightly so—have a problem in separating fantasy from reality. When young children play those violent video games, they are becoming more and more vulnerable to those violent messages.
	Following a public outcry, I convened a meeting with a few parliamentarians and the members of the video games industry to highlight the ambiguities in the current system. Towards the end of last year, in a meeting with my right hon. Friend the Prime Minister at the House, Mrs. Pakeerah and I urged him to tackle the menace of violent video games by examining the existing law governing the classification of video games—in particular, their labelling—and requesting the governing board to take a more cautious approach. My right hon. Friend made it clear at the meeting that he was looking at ways to strengthen legislation in the area to protect children. He listened with great care and attention to Mrs. Pakeerah and I am most grateful to him for his real concern about the issue.
	I wish to make it clear that the campaign is not about stopping adults doing anything: it is about protecting our children. Following the firm commitment by my right hon. Friend the Prime Minister to protect children and to review the law governing video games, I value the opportunity to debate the issue in this House.
	Over the years, there have been more than 3,000 research studies into the effects of screen violence, encompassing film, television, video and, more recently, computer and video games. However, little research has been carried out on interactive entertainment as it was originally perceived as a harmless and enjoyable pastime. Nevertheless, with the ever-increasing interest and participation of young children in that activity, much concern has been expressed about the effects of such games on them. At the centre of the debate is the question of whether they are detrimental to a young person's healthy development. There are specific concerns about the implications for aggression, addiction, criminal activity and reduced academic achievement.
	I understand that the Department for Culture, Media and Sport is commissioning a review of existing research to determine whether there is a link between playing violent video games and real-world behaviour. The last such Government study was carried out by the Home Office in 2001, and the results were inconclusive. Research into the effects of long-term exposure to computer games on subsequent behaviour is noticeably lacking and at present remains speculative. Studies to examine the effects of computer games on children's aggressive behaviour and self-esteem only involve measurement of the possible short-term aggressive consequences, so I urge my right hon. Friend the Minister to fill that question vacuum and commission new research into the long-term effects of playing such interactive games.
	Last week, accompanied by Mrs. Pakeerah, I visited the third largest interactive publisher in the UK, Activision based in Slough, to see how publishers classify video games. Activision is a leading international publisher of video games, with 6 per cent. of the market share; its European headquarters is in the United Kingdom. Its profits for last year are estimated at just over £100 million. Some of its games include "Doom 3", "X-Men" and "Spider-Man".From my visit, I learned that violence in over-18 video games is a staple of the video game industry. It takes between 20 and 60 people to develop an idea for a game and between 12 and 18 months to create it. The entire investment period can take up to three years. During that time, the board responsible for classifying the video game is called in to give expertise about the rating to be given to the game and about its target audience.
	At the early stages in the creation of the video, the publisher foresees, using guidelines set out by the video games classification board, which rating the game should receive. Once the creation of the game is complete, using the pan-European game information system, the ratings are carried out by members of the games industry using a self-assessment form. After examining a game, the in-house coder uses an existing set of answers and the game is rated automatically on that basis. An age is established for each content category, based on the answers on the assessment form.
	The method may sound fair but in action, as I witnessed when I visited Activision, the game does not end up with the British Board of Film Classification until after it has been produced. Thus, using the Video Standards Council and PEGI guidelines, the publisher will resort to reviewing the game again if it has been rejected. I urge the British Board of Film Classification to take a much more cautious approach in reviewing those games, and also to provide publishers with much more stringent and unambiguous guidelines and detailed feedback about why a video game has failed to qualify for a particular rating. With advances in the technology to create those games, it is only sensible that the guidelines for publishers be updated.
	Ten years ago, the average game cost £200,000 to develop, whereas now the average budget is more than £1 million. The level of violence in the gaming habits of young people is disturbingly high, and 65 per cent. of the market is made up of boys aged between 13 and 16 years. On 1 November, the ITV programme "Tonight with Trevor McDonald" revealed from a nationwide survey of 223 children aged between 11 and 14 that computer games featuring drugs, sex and violence are being bought by boys as young as 12 in supermarkets and high street shops. More than two thirds of young people aged between 11 and 14 admitted that they had played games certified 18 plus. Boys aged 12 to 14 were seen in the programme buying adult games from Tesco, Virgin, Dixons, John Lewis, Sainsbury and Asda. The programme highlighted the problem that it is so easy for children to get hold of those games. Something needs to change.
	Any shopkeeper who supplies a game in breach of the law can be sent to jail for six months, fined £5,000, or both. The law needs to be better enforced. To date, the retailers caught on the Trevor McDonald programme have not been prosecuted. According to the Video Standards Council, which also represents a large number of the UK retailers shown in the film, because the action was recorded for television, people should not be liable to prosecution. I therefore urge Minister to ask the Attorney-General to review that absurdity and prosecute those retailers for their actions, so that, in future, retailers can fully appreciate the consequence of selling adult-rating video games to children. We need to make an example of one to make the rest take this seriously.
	Parents are becoming very concerned about the messages that their children are receiving while playing such games. Parents need to be made more aware that video games are much more difficult and more ingenious than ping-pong and that they contain such violent activity. An interesting approach was launched in Canada last year, ahead of the Christmas shopping period, entitled "Commitment to Parents". A voluntary code was provided whereby parents entered into a dialogue with the retailers, thus enabling progress to be made to the benefit of parents and young children.
	Video and computer games will continue to be an exciting and growing part of children's media diets. As long as children have easy access to those games, policy debates will continue. There is much that is pernicious, banal and crude in popular culture. We must question what kind of society allows, if not encourages, youngsters to immerse themselves in such brutal fantasy games. Makers of the more violent games are pushing the outer limits of savagery and depravity, and current provisions have been widely criticised as ineffectual and confusing, so they need to be changed.
	I urge the Minister to do a number of things, and I seek her commitment on them. More research is needed into the long-term effects of playing such interactive games and their effect on children. Better regulation is needed, with much more clear and stringent guidelines, including transparent responsibility between the BBFC, the Entertainment and Leisure Software Publishers Association and PEGI. The current voluntary arrangements are too cosy. A more instructive and uniform labelling system is needed for parents to comprehend. Parents need to be educated, so that they become more aware of the content of games. The law must be better enforced. Retailers must be made aware of their responsibilities and prosecuted when they break the law.
	The tragic death of Stefan Pakeerah will be with his parents, family and friends for ever. I hope that this debate can shed light into the current ambiguities and prevent further callous attacks from happening again.

Estelle Morris: I congratulate my hon. Friend the Member for Leicester, East (Keith Vaz) not only on securing this Adjournment debate but on the campaign that he has waged relentlessly on behalf of his constituents and, in doing so, on behalf of many parents and many citizens of this country. I acknowledge that the debate follows a meeting with the Prime Minister, questions asked in the House and, as he informed us today, a visit to the industry itself. I thank him for raising these difficult issues, which we ought to address.
	I also acknowledge the intervention made by the hon. Member for East Worthing and Shoreham (Tim Loughton). The fact that he stayed for a short Adjournment debate shows his commitment, and I thank him for his interest. If he wishes, we will keep him informed of what we are able to do.
	I wish to put the issue into a wider context. We are all struck by the fact that this fast-growing, fast-moving industry uses technology that was not around when we were children and parents must become involved in something that is more unfamiliar to them than it is to their children. There is a danger that regulation enforcement follows the trend. As regulation catches up with a new invention, another new invention comes along. I make no criticism of anyone, but bureaucracy and government, both locally and nationally, can be slow and cumbersome in trying to ensure that it catches up.
	It is important to recognise that the games industry is a huge British success story. It earns money for us, and it earns us standing in the European and worldwide community. It is a good thing, and we are good at it. Most of the games, not those that have been mentioned this evening, add to the education, entertainment and cultural well-being of our nation—I would not want to suggest anything else—but, clearly, there is an issue with those that are violent or teach people how to commit crimes, and I would not want to pretend for a minute that such games do not exist.
	There might be an element of repetition, but I want to go over where we are, what has happened since my hon. Friend met the Prime Minister and where we might go in the future.
	The current position on classifying video games is important and it comes in two parts. First, under section 2 of the Video Recordings Act 1984, computer games are exempt from statutory classification unless they depict gross violence, human sexual activity or techniques likely to be useful in the commission of offences. As my hon. Friend said, about 30 games—about 2 per cent.—are referred each year to the British Board of Film Classification and they can be given an age rating that can be over 18. I do not have a feel for whether that figure is an indication that an insufficient number of games are being referred and that the relationship is too cosy. I do not have the evidence to go on, but I take the point that it could become too cosy. I want to give more thought to whether the statistic of 30, or 2 per cent. a year, is what one might expect to be referred to the BBFC given the nature of the industry.
	As my hon. Friend said, the United Kingdom has been involved in a pan-European system since 2003. It is a voluntary age-related classification system—the PEGI—that the Video Standards Council administers. As we know, these games cross national boundaries and we could find ourselves in the position in which an excellent UK classification and enforcement system went out of the window because games were being downloaded in the UK. As much cross-nation work as we can possibly do is important. That is why I welcome the Video Standards Council's administration of the PEGI system in the UK. As my hon. Friend, said it is an offence to sell video games to someone not of the age to buy them.
	Since my hon. Friend met the Prime Minister and representatives of our Department in early December, we have done what we can to improve the system. First, we held a meeting with all the representatives of the trade association, and that was a direct consequence of the meeting that my hon. Friend had. It involved the trade associations for the computer games and video games industries, the BBFC, video games retailers, the Video Standards Council and local government enforcement agencies.
	A number of things have emerged from that voluntary meeting. First, those at the meeting agreed that they would consider a new code of practice for retailers selling the games. That will be drawn up together with training and regulation of sales. That sounds good, and it is a voluntary code. That is where we are at the moment, and we need to see how it goes. It is important because the people selling the games will be personally liable for the consequences of any offence if they should be found guilty.
	I take the point made by the hon. Member for East Worthing and Shoreham about parents understanding their responsibilities. Many parents who would not dream of letting their child see an X-rated film are less understanding of the need to monitor their child's behaviour and activity with video games. They did not play such games when they were children and they have to rush to catch up with what is happening. My hon. Friend will know that my right hon. Friend the Secretary of State for Trade and Industry, who shares Government responsibility with my Department for this issue, reminded parents of that before Christmas. Much more needs to be done, and the Government and the industry have to take responsibility to make sure that we inform more parents about what is happening.

Tim Loughton: Places such as Dixons—to cite just one—are seen as fairly child friendly. Will the Minister support the sort of sting operations that the police and trading standards use for the under-age selling of drink and tobacco? Should they not also be applied to the under-age selling of video games to make sure that the issue is taken seriously?

Estelle Morris: I would support that. It is an enforcement issue and I shall come to that shortly. However, I accept that there is an issue about priorities and resources, but I will come back to that point.
	Some 85 per cent. of the games that the BBFC classifies carry an age warning. It and the Entertainment and Leisure Software Publishers Association are now working to make sure that all games carry an age warning and hope to have that in place by the middle of this year. We are also discussing with the industry the possibility of voluntarily increasing the size of the symbol that indicates the age under which children should not purchase the games so that it is more obvious to parents as well as to young people. If the voluntary agreement is not forthcoming, it will be open to us to examine the regulations because the size of the symbol is set out in regulations. We would not need primary legislation because the regulations could be changed if necessary.
	The hon. Member for East Worthing and Shoreham made an important point about enforcement. We have met the Local Government Association and the Trading Standards Institute to ensure that they consider enforcement. It is the easiest thing in the world to have legislation, but unless trading standards people treat the matter as a priority, nothing will change. Trading standards enforcement agencies have probably not caught up with the extent of the new crime of online piracy, so that will need to form part of our ongoing negotiations.
	Research is important, but it is not easy to separate the effect of a game on children from the influence of many other aspects of society, such as what they read, what they watch at the cinema and what they see on the street. My hon. Friend the Member for Leicester, East will know that, following his meeting with the Prime Minister, we have commissioned independent research from the university of Stirling. We think that that will be with us by February and we will let him know when we receive it. All the research that has been done so far has been inconclusive, but we will work to find out what we can do.
	My hon. Friend did not mention the online downloading of games, which is a matter for my colleagues in the Department of Trade and Industry. I assure him that the Government will address that issue.
	I conclude by saying that an industry that is as successful and growing as this country's video games industry—we have every right to be justifiably proud of it—has just as much of an obligation as the House and the Government to do what it can to ensure that our children are protected without fettering the freedom of adults. I thank my hon. Friend for bringing the matter to the attention of the House.
	Question put and agreed to.
	Adjourned accordingly at four minutes to Eleven o'clock.